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1 


I 


The  Enforcement  of  International  Law 
Through  Municipal  Law  in  the 
United  States 


BY 

PHILIP  QUINCY  WRIGHT 
A.  B.  Lombard  College,  1912 
A.  M.  University  of  Illinois,  1913 


THESIS 

Submitted  in  Partial  Fulfillment  of  the  Requirements  for  the 
Degree  of  Doctor  of  Philosophy  in  Political  Science 
in  the  Graduate  School  of  the 
University  of  Illinois 
1915 


3017  2.0 


34  I 

e 

ojo.  3 • 


PREFACE 

The  theory  of  international  law  upon  which  this  study  is 
based  may  be  briefly  summarized  in  a few  statements.  With 
the  present  system  of  world  organization,  effective  enforcement 
of  law  is  only  possible  through  action  by  state  administrative 
and  judicial  organs.  International  law,  therefore,  can  not  be 
effectively  enforced  except  over  persons  subject  to  the  jurisdic- 
tion of  the  state.  We  may  therefore  conclude  that  international 
law  can  be  effectively  enforced  only  in  so  far  as  it  prescribes 
conduct  for  persons  and  subordinate  agencies  of  government. 

The  essential  feature  of  international  law  is  not  that  it  lays 
down  rules  of  conduct  for  states,  but  that  it  holds  states  respon- 
sible for  the  conduct  of  persons.  International  law,  therefore^ 
should  be  regarded  as  the  law  binding  the  members,  both  persons 
and  states,  of  a “supra-national”  state  or  a “community  of  na- 
tions”, the  enforcement  of  which  is  delegated  to  the  organs  of 
the  states  composing  it.  The  German  Constitution,  with  its 
system  of  imperial  law,  binding  on  individuals  but  enforced 
largely  through  the  administrative  officers  and  courts  of  the 
component  states,  furnishes  an  illustration  of  such  a system. 

The  recognition  of  this  fact,  that  international  law  reaches 
down  to  individuals,  is,  therefore,  important.  International  law 
can  become  effective  through  state  enforcement  in  proportion  as 
it  lays  down  obligations  for  persons,  rather  than  for  states.  Much 
of  it  now  consists  of  rules  prescribed  for  persons  and  officers  of 
government  and  the  greater  part  of  it  can  be  described  in  terms 
of  such  rules  because  the  state  can-  only  act  through  human 
agencies.  When  we  say  that  a state  is  obliged  to  do  or  abstain 
from  doing  certain  acts,  we  can  only  mean  that  its  chief  executive 
officer,  or  its  legislature,  or  its  courts  are  bound  to  observe  cer- 
tain rules,  which,  by  proper  constitutional  checks,  it  is  possible 
for  municipal  law  to  enforce. 

With  this  conception,  that  international  law  prescribes 
rules  of  conduct  for  persons  and  public  officers  and  imposes 
obligations  upon  states,  to  enforce  them,  we  shall  consider  the 
rules  of  municipal  law  enforced  in  the  United  States  in  pur- 
suance of  this  international  obligation. 

The  distinction  between  a legal  and  a political  method  of 

5 


enforcement  has  been  kept  in  mind.  Where  action  is  left  to  the 
discretion  of  military,  naval  or  executive  officers  or  legislative 
bodies  as  cases  arise,  the  rule  is  not  considered  one  of  municipal 
law.  The  term  is  only  applied  to  the  rules  laid  down  as  per- 
manent and  enforceable  by  governmental  authority  according  to 
an  established  procedure,  either  judicial  or  administrative. 

The  title  to  be  given  this  study  caused  the  author  much 
perplexity,  and  doubtless  the  one  finally  decided  upon  is  open 
to  criticism.  Mr.  A.  V.  Dicey  entitled  his  book  on  private 
international  law,  ‘‘A  Digest  of  the  Law  of  England  with 
reference  to  the  Conflict  of  Law.”  Perhaps  this  thesis  could  be 
entitled  ‘‘A  Digest  of  the  Law  of  the  United  States  with  reference 
to  International  Law.”  Such  a title,  however,  would  imply  a 
more  or  less  exhaustive  treatment  of  the  subject.  The  present 
work  does  not  pretend  to  digest  the  whole  of  the  law  of  the 
United  States  relating  to  the  enforcement  of  international  obli- 
gations. It  is  intended  merely  to  suggest  a field  which  the  writer 
believes  will  bear  further  exploration.  The  title  first  considered 
was  “The  Extent  to  which  International  Law  is  Incorporated 
into  the  Law  of  the  United  States.”  Such  a title  would  have 
excluded  consideration  of  the  rules  which  we  have  designated 
as  laws  supplementary  to  international  law.  These  are  municipal 
law  enforcing  international  obligations  but  are  not  rules  of 
international  law  incorporated  into  municipal  law.  The  title 
finally  settled  upon  is  certainly  inclusive  enough  and  indicates 
that  discussion  is  limited  to  the  rules  of  international  law 
enforced  as  law  in  the  United  States,  excluding  those  enforced  by 
executive  authorities  as  ‘ ‘ political  questions.  ’ ’ 

The  general  subject  of  the  relationship  of  international  to 
municipal  law  has  not  been  extensively  considered  in  any  English 
treatise.  Holland’s  excellent  article  on  “International  Law  and 
Acts  of  Parliament”  published  in  his  “Studies  on  International 
Law”  is  a brief  but  valuable  contribution.  Professors  J.  B. 
Scott  and  W.  W.  Willoughby  in  articles  in  the  American  Journal 
of  International  Law,  Westlake  in  an  article  entitled,  “Is  Inter- 
national Law  a part  of  the  Law  of  England?”  published  in  the 
Law  Quarterly  Review,  and  Lawrence  in  his  “Essays  on  some 
disputed  Questions  of  International  Law”  have  discussed  the 
nature  of  international  law  and  its  relation  to  municipal  law, 
especially  to  the  judiciary.  Since  this  work  was  completed  an 
excellent  discussion  of  ‘ ‘ The  Relation  of  International  Law  to  the 
Law  of  England  and  of  the  United  States  of  America”  by 
C.  M.  Picciotto  has  been  published.  This  writer  deals  especially 


6 


with  the  relative  legal  force  of  statutes,  executive  orders,  treaties 
and  customary  international  law  in  the  courts  of  England  and 
the  United  States.  Walker  in  his  ‘^Science  of  International  Law”, 
Westlake  in  his  “Principles”  as  well  as  in  his  more  recent  work 
on  “International  Law”,  and  A.  H.  Snow  in  several  articles  in 
the  American  Journal  of  International  Law  have  emphasized  the 
idea  that  international  law  is  law  governing  individuals 
regarded  as  members  of  a society  of  nations,  rather  than  law 
simply  between  nations,  as  the  name  suggests.  The  last  writer  in 
fact  suggests  the  term  “supra  or  super  national”  as  a more 
appropriate  term. 

Writers  on  jurisprudence  have  sometimes  considered  the  sub- 
ject but  usually  very  briefly.  With  Austin’s  example  before 
them,  they  have  excluded  international  law  from  the  scope  of 
their  subject.  Gray’s  “Nature  and  Sources  of  the  Law”  and 
Stephen’s  “History  of  the  Criminal  Law  of  England”  contain 
particularly  lucid  expositions  from  this  standpoint. 

The  most  important  contributions  to  the  subject  are  in  Ger- 
man. H.  Triepel  in  his  “Volkerrecht  und  Landesrecht”  con- 
siders the  nature,  sources  and  relationship  of  international  and 
municipal  law.  W.  Kaufmann,  in  “Die  Rechtskraft  des  Inter- 
nationalen  Rechtes  und  das  Verbal tnisse  des  Staats  Organs  zu 
demselben”  covers  somewhat  the  same  ground,  but  emphasizes 
particularly  the  legal  authority  of  international  law  and  treaties 
as  immediate  sources  of  municipal  law. 

In  the  present  work,  the  writer  has  attempted  to  discover 
the  actual  situation  in  the  United  States,  with  only  incidental 
reference  to  the  theoretical  relationship  of  the  two  branches  of 
jurisprudence.  Primary  reference  has  therefore  been  made  to 
the  treaties,  statutes,  executive  orders  and  court  decisions  of  the 
United  States.  Had  it  not  been  for  the  orderly  arrangement  of 
much  of  this  material  in  Moore’s  “Digest  of  International  Law”, 
a monumental  contribution  to  the  science,  the  work  would  have 
been  practically  impossible.  Moore’s  International  Arbitrations 
have  also  been  used,  as  have  the  collections  of  cases  by  Freeman 
Snow,  J.  B.  Scott,  Pitt  Cobbett,  and  Norman  Bentwich.  Much 
use  has  also  been  made  of  the  annual  publications  of  the  Naval 
War  College,  in  which  numerous  points  of  prize  law  have  been 
exhaustively  discussed  with  especial  reference  to  the  practice 
of  the  United  States.  Professor  C.  G.  Fenwick’s  recent  work  on 
the  Neutrality  laws  of  the  United  States  has  been  constantly 
referred  to  in  dealing  with  that  subject.  Tucker  and  Blood’s 
edition  of  the  Penal  Code  of  1910,  Davis’s  edition  of  the  Military 


7 


Laws  and  Howland’s  Digest  of  Opinions  of  the  Judge  Advocates 
General,  all  exhaustively  annotated,  have  also  been  of  assistance. 
The  standard  treatises  on  international  law,  of  which  those  by 
Professors  G.  G.  Wilson  and  Amos  S.  Hershey  are  particularly 
rich  in  references  illustrative  of  American  practice,  have,  of 
course,  been  examined. 

The  work  has  been  carried  through  under  the  guidance  of 
Professors  J.  W.  Garner  and  Walter  Fairleigh  Dodd,  to  both  of 
whom  the  author  wishes  to  make  grateful  acknowledgement  for 
many  suggestions  and  much  helpful  criticism. 

Champaign,  Illinois, 

January,  1916. 


8 


TABLE  OF  CONTENTS 


PAGE 

Introduction  11-20 

PART  1.  OBLIGATIONS  IN  TIME  OF  PEACE. 

Chapter  I.  Introductory 21-22 

Chapter  II.  Obligations  of  Abstention 23-44 

Introductory  23 

Acquisition  of  Territory  23 

Use  of  Force  Against  Foreign  States  or  Their  Subjects 26 

Exercise  of  Extraterritorial  Jurisdiction  31 

Chapter  III.  Obligations  of  Acquiescence 45-66 

Introductory  45 

Privileges  of  Foreign  Agencies  of  Government  and  persons 49 

Liabilities  attached  to  Newly  Acquired  Territory 56 

Servitudes  64 

Chapter  IV.  Obligations  of  Prevention 67-86 

Introductory  67 

Acts  by  Agencies  of  Government 68 

Acts  by  the  Civil  Population 71 

Infraction  of  Treaties 81 

Chapter  V.  Obligations  of  Vindication.... 87-92 

Introductory  87 

International  Cooperation  87 

Prevention  of  Crime  88 

Extradition  89 

Return  of  Deserting  Seamen 92 

Chapter  VI.  Obligations  of  Reparation 93-105 

Introductory  93 

Reparation  by  the  National  Government 94 

Reparation  by  Inferior  Governmental  Divisions,  Public  Officers 

and  Private  Persons  102 

PART  II.  OBLIGATIONS  AS  A NEUTRAL  TOWARD 
BELLIGERENTS. 

Chapter  VII.  Introductory  106-109 

Chapter  VIII.  Obligations  of  Prevention 110-128 

Treaty  Provisions  no 

Statutory  Provisions  114 

Executive  Action  122 

Commercial  Embargoes  123 

Interoceanic  Canals  124 

Acts  by  Agencies  of  Government 126 

9 


PAGE 

Chapter  IX.  Obligations  of  Vindication 129-142 

Introductory  129 

Illegal  Prizes  131 

Illegal  Acts  by  Belligerent  Warships 137 

Violations  of  Land  Territory  141 

PART  III.  OBLIGATIONS  AS  A BELLIGERENT  TOWARD 
NEUTRALS. 

Chapter  X.  Introductory  143-145 

Chapter  XL  Obligations  of  Abstention 146-171 

Introductory  146 

Neutral  Property  at  Sea  149 

Grounds  of  Condemnation  149 

Claims  of  the  Neutral  Owner 168 

Chapter  XII.  Obligations  of  Prevention 172-197 

Introductory  172 

Acts  by  Land  Forces  172 

Acts  by  Naval  Forces  177 

Seizure  of  Prizes 180 

Care  and  Treatment  of  Prizes 183 

Adjudication  of  Prizes  187 

PART  IV.  OBLIGATIONS  AS  A BELLIGERENT  TOWARD 
ENEMIES. 

Chapter  XIII.  Introductory  198-200 

Chapter  XIV.  Obligations  of  Abstention 201-206 

Introductory  201 

Enemy  Private  Property  at  Sea 202 

Enemy  Private  Property  on  Land 205 

Chapter  XV.  Obligations  of  Prevention 207-217 

Introductory  207 

Acts  by  Land  Forces  207 

Acts  by  Naval  Forces  212 

Acts  by  the  Civil  Population 214 

Chapter  XVI.  Conclusion  218-229 

Rules  of  International  Law  prescribing  conduct  for  sovereign 

powers 218 

Rules  of  International  Law  prescribing  conduct  for  persons 

and  officers  219 

Division  of  Power  Between  State  and  National  Governments..  228 
Importance  of  Municipal  Enforcement  of  International  Law....  228 

Authorities  230-238 

List  of  Cases 239-253 

Index 254-264 

10 


INTRODUCTION 


POSSIBILITY  OF  ENFORCING  INTERNATIONAL  BY  MUNICIPAL  LAW 

It  is  the  purpose  of  this  thesis  to  discover  how  and  to  what 
extent  international  law  is  enforced  by  municipal  law  in  the 
United  States.  For  an  adequate  treatment  of  the  subject  a more 
or  less  definite  meaning  must  be  attached  to  the  terms  municipal 
law  and  international  law.  This  is  all  the  more  necessary  be- 
cause, with  a common  view  of  these  two  branches  of  jurispru- 
dence, our  inquiry  would  be  not  only  fruitless  but  impossible. 
Thus  there  is  a common  opinion  which  limits  the  connotation 
of  international  law  to  relationships  between  states  regarded  as 
independent  political  communities,  exclusively.^  With  this  view 
the  state  is  regarded  as  a unit,  an  organism  whose  control  is  con- 
centrated in  a single  will  designated  by  the  term  sovereignty. 
It  is  with  sovereigns  alone  that  international  law  has  to  do. 

Municipal  law  on  the  other  hand  is  held  to  be  law  within  the 
state.  The  sovereign  enforces  it  but  can  not  be  bound  by  it.  As 
well  say  that  a dynamo  can  drive  the  engine  which  moves  it,  as  to 
say  the  sovereign  power  can  be  controlled  by  the  municipal  law 

^See  Bentham,  “With  regard  to  the  political  equality  of  the  persons 
whose  conduct  is  the  object  of  the  law.  They  may,  on  any  given  occasion, 
be  considered  either  as  members  of  the  same  state,  or  members  of  different 
states.  In  the  first  case  the  law  may  be  referred  to  the  head  of  internal ; 
in  the  second  case  to  that  of  international  jurisprudence.  Now  as  to  any 
transactions  which  may  take  place  between  individuals  who  are  subjects 
of  different  states : those  are  regulated  by  the  internal  laws  and  decided 
upon  by  the  internal  tribunals  of  the  one  or  the  other  of  these  states,  the 
case  is  the  same  where  the  sovereign  of  the  one  has  any  immediate  trans- 
action with  a private  member  of  the  other.  * * * There  remains,  then 

the  mutual  transactions  between  sovereigns  as  such,  for  the  subject  of  that 
branch  of  jurisprudence  which  may  be  properly  and  exclusively  termed 
international  law.”  Introduction  to  Principles  of  Morals  and  Legislation, 
Works,  Bowring,  Ed.,  31149.  See  also  Travers  Twiss,  Law  of  Nations 
considered  as  Independent  Political  Communities,  Oxford,  1884,  p.  2;  T.  E. 
Holland,  The  Elements  of  Jurisprudence,  nth  ed.,  N.  Y.,  1910,  pp.  385- 
389,  402. 


II 


12 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[12 


it  makes  and  enforces.*  How  then  can  municipal  law  enforce 
international  law  ? Clearly  with  this  conception  of  international 
law  it  can  not. 

Although  this  theory  of  international  law  is  often  enunci- 
ated, it  is  never  adhered  to  in  discussions  of  the  subject  with  the 
meaning  just  outlined.  All  writers  on  international  law  discuss 
rights  and  duties  of  ambassadors  and  consuls,  of  armed  forces, 
of  aliens,  of  neutral  vessels  in  time  of  naval  war,  etc.  Inter- 
national law  as  well  as  municipal  law  contains  rules  relating  to 
the  conduct  of  persons.  Were  such  rules  omitted  from  the  sub- 
ject, international  law  would  be  reduced  to  a few  precepts  telling 
when  a state  may  make  war,  how  far  it  may  exercise  jurisdiction, 
and  how  and  when  it  may  acquire  territory,  some  of  which  on 
investigation  would  be  found  to  be  rules  of  policy  rather  than 
of  law. 

International  law  is  not  to  be  distinguished  from  municipal 
law  by  the  assertion  that  the  former  relates  to  the  conduct  of 
states,  the  latter  to  the  conduct  of  individuals  within  the  state. 
Not  state  conduct,  but  state  responsibility  is  the  criterion  of 
international  law.  International  law  prescribes  rules  of  conduct 
which  the  individual  must  observe,  but  if  he  fails  to  observe  them 
it  pays  no  attention  to  the  individual  but  declares  that  the  state 
of  which  he  is  a member  is  responsible  and  liable.  All  rules,  for 
the  breach  of  which  states  will  be  held  liable,  are  rules  of  inter- 
national law. 

Thus  international  law  and  municipal  law  are  not  mutually 
exclusive.  The  same  rules  may  be  prescribed  by  both.  Both 
international  law  and  the  municipal  law  of  the  United  States  say 

“Cf.  Justice  Holmes,  a “A  sovereign  is  exempt  from  suit  not  because 
of  any  formal  conception  or  obsolete  theory,  but  on  the  logical  and  prac- 
tical ground  that  there  can  be  no  legal  right  as  against  the  authority  that 
makes  the  law  on  which  the  right  depends,”  Kawananako  vs.  Polyblank, 
205  U.  S.  349,  353,  (1907),  citing  Hobbes,  Leviathan,  ch.226,  2;  Bodin,  Re- 
publique,  i,  ch.8,  ed.  1629,  p,  132;  Sir  John  Eliot,  De  Jure  Maiestrate,  c3; 
Baldwin,  De  Leg.  et  Const.,  Digna  Vox,  2nd  ed.,  1496,  fol,  51  b,  ed.  1539, 
fol.  61.  See  also  American  Banana  Co.  vs.  United  Fruit  Co.,  213  U.  S. 
347;  John  Austin,  Lectures  on  Jurisprudence,  5th  ed.,  London,  1911,  2 
vols.,  I ;263,  278;  J.  C.  Gray,  The  Nature  and  Sources  of  the  Law,  N.  Y., 
1909,  pp.  77-81;  T.  E.  Holland,  The  Elements  of  Jurisprudence,  nth  ed., 
N.  Y.,  1910,  pp.  53,  365 ; J.  W.  Salmond,  Jurisprudence,  2nd  Ed.,  London, 
1907,  p.  no,  475-481;  J.  C.  Calhoun,  Disquisition  on  government.  Works, 
vol.  6,  Columbus,  1851,  i;i46;  J.  W.  Burgess,  Political  Science  and  Com- 
parative Constitutional  Law,  Boston,  1902,  2 vol.,  i ;53. 


13] 


INTRODUCTION 


13 


that  inhabitants  of  the  United  States  shall  not  “set  on  foot 
military  expeditions”  when  the  country  is  neutral,  and  that 
naval  forces  shall  not  interfere  with  neutral  commerce  in  time 
of  war  except  for  breach  of  blockade,  carriage  of  contraband  or 
similar  cause.  Municipal  law,  however,  holds  the  individual 
criminally  liable  for  setting  on  foot  a military  expedition^  and 
the  naval  officer  liable  in  damages  for  making  a seizure  without 
probable  cause,^  while  international  law  in  both  cases  requires 
the  United  States  to  make  reparation  to  the  injured  states  if 
these  acts  occur. We  believe  therefore  that  it  is  possible  for 
municipal  law  to  enforce  at  least  a part  of  international  law  so 
far  as  the  obligations  of  that  state  are  concerned. 

'RELATIONSHIP  OF  INTERNATIONAL  AND  MUNICIPAL  LAW 

International  law  consists  of  rules  prescribing  the  conduct 
of  persons,  agencies  of  government  and  states,  for  breaches  of 
which  states  are  held  liable.®  This  definition  is  undoubtedly 

^Act  Apr.  20,  i8i8,  Rev.  Stat.,  sec.  5286. 

^Little  vs.  Barreme,  2 Cranch  176,  (1804)  ; The  Thompson,  3 Wall., 
155;  The  Dashing  Wave,  5 Wall.  170.  See  Moore’s  Digest,  7;  593-598. 

^Hague  Conventions,  1907,  v;art.  4;  Declaration  of  London,  1909, 
art.  64. 

®A  number  of  different  points  of  emphasis  are  made  in  definitions  of 
international  law.  All  agree  that  it  consists  of  “rules  of  conduct  regulating 
the  intercourse  of  states”  (Halleck,  Int.  Law,  3rd  ed.,  i;46).  Many 
however  enlarge  this  definition  in  its  most  limited  sense,  by  emphasizing 
the  fact  that  international  law  may  prescribe  conduct  for  persons,  (Her- 
shey,  Int.  Law,  p.  i ; Westlake,  Int.  Law  i,  p.  i ; Principles  p.  i ; Bonfils, 
Droit  Int,  pp.  2,  79).  Walker,  (Science,  p.  44)  emphasizing  this  idea,  says, 
“International  laws  are  rules  of  conduct  observed  by  men  toward  each 
other  as  members  of  different  states  though  members  of  the  same  inter- 
national circle.”  Most  writers,  however,  restrict  the  connotation  of  the 
term  By  requiring  that  the  rules  conform  to  some  standard  of  objectivity. 
'‘Actual  observance”  is  frequently  considered  enough  (Bonfils,  p.  i;  Wal- 
ker, Science,  p.  44).  Lawrence  (p.  i)  and  Bonfils  (p.  2)  require  that  the 
rules  “determine  conduct”,  Westlake  (Prin.  p.  i)  that  they  “govern  the 
relations  of  states”,  Hershey  (p.  i)  that  they  be  “binding  upon  the  mem- 
bers of  the  international  community”.  Exactly  how  any  of  these  standards 
can  distinguish  international  law  from  international  morality,  it  is  difficult 
to  see.  They  are  so  vague  as  to  be  almost  meaningless.  Hall’s  insistence 
that  nations  must  “have  consented  to  be  bound”  (p.  5)  is  more  definite, 
while  Holland  (Studies,  p.  194)  is  even  more  concrete  when  he  says, 
“the  law  of  nations  * is  the  public  opinion  of  the  governments  of 
the  civilized  world  with  reference  to  the  rights  which  any  state  would  be 


14 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[14 


exceedingly  vague.  It  is  often  difficult  to  tell  whether  a state 
will  be  held  liable  for  the  infraction  of  a particular  rule  or  not. 
Often  if  weak  it  will,  if  strong  it  will  not.  There  is  no  authori- 
tative tribunal  for  defining  rules  of  international  law  and  saying 
for  this  act  of  a person  or  of  an  officer  the  state  is  responsible, 
for  this  it  is  not.  The  only  test  is  that  of  actual  practice.  Where 
responsibility  is  habitually  acknowledged  or,  in  other  words, 
where  the  consensus  of  opinion  among  nations  recognizes  that 
responsibility  exists,  the  rule  is  one  of  international  law. 

Even  more  vague  than  the  scope  of  international  law  is  its 
sanction.  The  enforcement  of  the  liability  of  states  is  not  insured 
by  any  legal  procedure.  Such  pressure  as  the  inertia  of  habit, 
public  opinion,  commercial  or  military  reprisal,  threats  of  war, 
etc.,’’  alone  compels  states  to  observe  international  law,  to  enforce 
its  observance  among  their  subjects  and,  vdthin  their  territory, 

justified  in  vindicating  for  itself  by  a resort  to  arms.’'  Some  writers 
emphasize  the  idea  that  international  law  is  not  real  law.  Holland  calls 
it  “public  opinion”,  (Studies,  p.  194),  Austin,  “international  public  moral- 
ity” (i;  173,  226),  Stephen  (History  of  Crim.  Law,  2;25)  and  Gray 
(Nature  and  Sources  of  the  Law  p.  125)  convey  a similar  idea.  It  seems 
to  us  that  such  assertions  are  inappropriate  in  a definition  of  international 
law.  Usage  has  applied  the  term  so  consistently  that  it  would  seem  more 
proper  to  enlarge  the  definition  of  law  so  as  to  include  international 
law.  However,  such  definition  may  serve  the  useful  purpose  of  indi- 
cating that  the  sanction  of  international  law  is  different  from  that  of 
municipal  law,  which  is  the  significance  given  by  these  writers  to  the  term 
“law”.  Our  definition  is  doubtless  as  open  to  the  criticism  of  vagueness 
as  any.  We  make  no  immediate  limitation  according  to  the  character  of 
the  parties  obligated.  Any  rule  of  conduct  is  a rule  of  international  law, 
if  states  are  held  liable.  This  connotative  limitation  under  present  con- 
ditions implies  an  exclusion  of  rules  relating  to  parties  of  a certain 
character,  for  instance  those  defining  relationships  between  persons  of 
the  same  state  or  persons  and  their  own  government,  because  such  matters 
being  entirely  internal,  other  states  have  no  interest  in  exacting  a lia- 
bility. There  have,  however,  been  attempts  to  include  res  interna  in 
international  law,  for  example  the  principle  of  legitimacy  by  the  Quad- 
ruple Alliance  of  1815.  If  state  liability  were  actually  recognized,  in  such 
matters,  they  would  become  rules  of  international  law.  By  the  phrase 
“are  held  liable”  we  mean  to  assume  an  inductive  and  objective  standard, 
requiring  actual  practice  for  the  proof  of  this  condition,  and  also  a sub- 
jective standard  similar  to  Holland’s  that  opinion  must  recognize  a resort 
to  force  as  justifiable  in  enforcing  this  liability,  a condition  which  is  of 
course  incapable  of  more  than  very  indefinite  verification. 

^See  Elihu  Root,  “The  sanctions  of  International  Law”,  Am.  Jour. 
Int.  Law,  21451  (1908). 


15] 


INTRODUCTION 


15 


to  acknowledge  their  liability  and  to  make  adequate  reparation 
for  infractions  of  its  precepts. 

But  although  it  is  difficult  to  tell  what  rules  are  within  the 
field  of  international  law  and  what  sanctions  enforce  the  liability 
of  states,  it  is  easy  to  state  definitely  many  of  the  rules  them- 
selves and  to  show  how  they  are  actually  enforced.  This  state- 
ment appears  self-contradictory,  yet  there  are  many  rules 
relating  to  diplomatic  intercourse,  condemnation  of  prizes,  etc., 
which  are  capable  of  being  stated  in  definite  terms  and  are 
enforced  by  definite  legal  methods.  They  are  also  rules  of  inter- 
national law ; at  least  states  have  habitually  acknowledged 
responsibility  for  their  infraction. 

For  the  definite  statement  and  legal  enforcement  of  interna- 
tional law  we  look  to  the  municipal  law  of  states.  Municipal  law 
consists  of  all  general  rules  which  the  state  enforces.®  The  most 
common  agents  of  enforcement  are  judicial  tribunals,  but  a rule 
enforced  by  an  authoritative  executive  or  administrative  pro- 

®Writers  on  general  jurisprudence  commonly  give  a similar  definition 
to  the  term  “law”.  Gray  (Nature  and  Sources  of  the  Law,  p.  82)  says, 
“the  law  of  the  state  * * is  composed  of  the  rules  which  the  courts 
* lay  down  for  the  determination  of  legal  rights  and  duties.” 
Salmond  (Jurisprudence  p,  9)  says,  “The  law  is  the  body  of  principles 
recognized  and  applied  YJy  the  state  in  the  administration  of  justice”. 
Both  of  these  definitions  recognize  state  enforceability  as  the  most 
important  feature  of  municipal  law.  Austin’s  conception  (Lectures  on 
Jurisprudence,  i ;79,  88)  was  essentially  the  same  although  he  emphasized 
the  fact  that  the  state  “commanded”  law  rather  than  that  it  enforced  it, 
thus  being  forced  to  the  awkward  explanation  that  “what  the  sovereign 
permits  he  commands”  (2;5io)  to  explain  judge-made  law.  Maine’s 
criticism  (Early  Hist,  of  Inst.,  pp.  377-387)  that  customary  law  is  neither 
commanded  nor  enforced  by  the  sovereign  and  can  not  be  altered  by  him, 
seems  to  confuse  the  titular  with  the  real  sovereign.  If  customary  law 
is  applied  in  the  village  tribunals  it  is  being  enforced  by  the  “sovereign” 
in  the  sense  of  political  science  even  though  Runjeet  Singh,  the  titular 
sovereign,  does  not  enforce  it  and  can  not  alter  it.  Walker  (Science  of 
Int.  Law,  p.  44)  attempts  to  parallel  his  definition  of  municipal  with  that 
of  international  law  and  says  “municipal  laws  are  rules  of  conduct  ob- 
served by  men  or  by  men  recognized  as  binding  toward  each  other  as 
members  of  the  same  state”.  He  does  not  recognize  positive  state  enforce- 
ability as  necessary  and  he  also  limits  the  connotation  of  the  term  to  rules 
between  members  of  the  same  state.  We  disagree  with  him  in  both  of 
these  points.  We  intend  to  include  as  municipal  law  all  rules  of  conduct 
binding  either  citizens  or  aliens,  enforced  by  the  state,  either  through  a 
central  or  local  authority,  so  long  as  this  authority  is  recognized  as. 
legitimate. 


16 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[16 


cedure  is  no  less  municipal  law.  The  rules  of  international  law, 
so  far  as  they  lay  down  rights  and  duties  of  persons  and  officers, 
may  be  enforced  by  municipal  law  either  directly  through  the 
application  of  international  law  by  the  court  and  executive 
officials  or  indirectly  through  the  coercion  of  persons  and  officers 
in  a manner  not  immediately  prescribed  by  international  law  but 
calculated  to  cause  an  observance  of  the  international  duty. 

It  is  true  that  they  may  not  be.  A state  has  entire  control 
of  its  own  municipal  law  and  whether  or  not  it  chooses  to  enforce 
rules  of  international  law,  depends  upon  the  force  of  the  inter- 
national sanctions  pressing  upon  it.^  But  if  it  does  enforce  them, 
it  thereby  enforces  its  own  duties  under  international  law,  and 
in  so  far  as  this  enforcement  is  effective  and  complete  it  escapes 
liability  under  international  law.  It  also  gives  legal  definition 
and  sanction  to  these  rules. 

It  is  thus  an  obligation,  imposed  by  international  law  itself 
upon  states,  to  enforce  that  part  of  international  law  relating 
to  the  conduct  of  persons  within  their  jurisdiction,  through  their 
municipal  jurisprudence.^®  It  is  for  states  to  supply  the  lack  of 
a world  administration  for  the  execution  of  international  law. 

^See  W.  W.  Willoughby,  The  Legal  Nature  of  Int.  Law,  Am.  Jour. 
Int.  Law,  8;357,  in  answer  to  an  article  of  the  same  title  by  J.  B.  Scott,  Am. 
Jour.  Int.  Law,  i ;83i.  Also  Westlake,  Is  Int.  Law  part  of  the  Law  of 
England?,  Law  Quar.  Rev.,  22;  14-26;  Holland,  Studies  in  Int.  Law, 

p.  195. 

loSee  judicial  decisions  on  this  subject.  Res  Publica  vs.  DeLong- 
champs,  i Dali,  iii;  Talbot  vs.  Seamens,  i Cranch  i,  37  (1801);  Thirty 
Hogsheads  of  Sugar  vs.  Boyle,  9 Cranch  191 ; The  Scotia,  14  Wall.  170, 
Scott  17;  Hilton  vs.  Guyot,  159  U.  S.  113;  The  Paquete  Habana,  175  U.  S. 
677,  Scott,  19.  In  Murray  vs.  the  Charming  Betsy,  2 Cranch  64,  the  court  said 
that  municipal  law  ought  to  be  interpreted  in  harmony  with  international 
law  if  possible.  English  cases — Triquet  vs.  Bath,  3 Burr.  1478,  Scott,  6; 
Heathfield  vs.  Chilton,  4 Burr.  2015,  Scott  189;  Le  Louis,  2 Dods.  239, 
Scott  352;  Emperor  of  Austria  vs.  Day,  2 Giff.  628;  In  the  Recovery,  6 
Rob.  348,  the  court  even  went  so  far  as  to  assert  that  prize  courts  must 
apply  international  law  in  opposition  to  municipal  statutes.  This  view  was 
not  maintained  in  West  Rand  Central  Gold  Mining  Co.  vs.  Rex,  L.  R. 
1905,  2 K.  B.  391,  Bentwich  i,  which  held  that  an  act  of  state  prevented 
the  application  of  conflicting  rules  of  international  law.  Regina  vs.  Keyn, 
L.  R.  2 Ex.  63,  Bentwich,  6,  held  that  international  law  could  not  operate 
to  increase  jurisdiction;  and  Mortensen  vs.  Peters,  14  Scot.  L.  T.  R.  227 
(1906),  Bentwich  12,  applied  a statute  extending  jurisdiction  beyond  the 
limits  permitted  by  international  law.  See  discussion  of  prize  cases  on  this 
point,  Holland  Studies,  pp.  I93-I99- 


17] 


INTRODUCTION 


17 


As  state  courts  of  the  United  States  enforce  the  federal  consti- 
tion,  laws  and  treaties,  so  it  is  the  duty  of  independent  govern- 
ments to  see  that  their  courts  enforce  international  law  and  that 
their  executive  authorities  execute  it. 

It  must  not  be  overlooked  that  there  are  rules  of  interna- 
tional law  which  are  incapable  of  enforcement  as  municipal  law. 
Those  which  prescribe  rules  of  conduct  which  the  state  considered 
as  a unit  must  do  or  refrain  from  are  directed  solely  to  the  sov- 
erign  power  in  the  government.  The  commencement  of  war,  the 
recognition  of  foreign  states  and  governments,  the  submission  of 
questions  to  arbitration,  the  acquisition  of  territory,  the  extension 
of  jurisdiction  are  of  this  character.  They  are  political  questions 
and  beyond  the  power  of  municipal  law  to  control.  The  observ- 
ance of  such  rules  is  in  the  hands  of  discretionary  officers.  In 
the  United  States  congress  and  the  president  are  responsible 
for  the  observance  of  such  rules  by  the  United  States  and  they 
can  not  be  coerced  by  municipal  regulations.  It  is  true  that  in 
these  matters  the  political  organs  of  the  government  act  accord- 
ing to  legal  precedents  as  well  as  dictates  of  pure  policy.  But 
their  action  in  either  case  is  beyond  the  scope  of  municipal  law 
and  of  our  subject. 

We  are  concerned  with  the  rules  of  international  law 
enforced  directly  as  law  in  the  United  States  and  those  enforced 
indirectly  by  the  enforcement  of  laws  supplementary  to  inter- 
national law.  The  precedents  and  procedure  followed  by  polit- 
ical organs  of  government  in  settling  these  political  questions  will 
not,  therefore,  be  considered. 

CLASSIFICATION 

The  doctrine  of  responsibility  of  states,  which  is  the  essence 
of  international  law,  presents  two  possible  methods  of  viewing 
the  matter.  We  may  consider  the  rule  itself  of  primary  import- 
ance; and  thus  private  persons,  ambassadors,  consuls,  military 
forces,  naval  forces,  etc.,  as  well  as  states  would  be  subjects 
of  international  law  for  whom  different  rights  and  obligations 
are  prescribed.  On  the  other  hand  we  may  consider  the  liability 
or  enforcement  of  the  rule  as  of  primary  importance ; and  states, 
which  are  alone  responsible,  as  the  only  subjects  of  international 
law.  We  should  then  describe  the  rights  and  duties  of  states, 
with  reference  to  these  various  classes  of  officers  and  persons, 
considering  them  as  objects  of  international  law. 

The  latter  is  the  course  commonly  pursued.  States  are  said 


18 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[18 


to  be  the  only  subjects  of  international  law.  Persons  and  public 
officers  as  well  as  territory  and  other  kinds  of  property  are  its 
objects.^^ 

In  our  own  opinion  there  is  much  to  be  said  for  the  first  view. 
There  is  a tendency  for  international  law  to  impose  a direct  re- 
sponsibility upon  persons  and  officers^-  and  if  it  is  ever  to  be  law 
in  the  Austinian  sense  of  the  term,  this  view  will  have  to  be  re- 
cognized. The  possibility  of  an  effective  law  binding  states  as 
such  was  exhaustively  discussed  in  the  federal  convention  of 
1787/^  and  the  impossibility  of  enforcing  such  a law  by  ordinary 
lagal  processes  was  demonstrated  prior  to  the  civil  war.  Even 
corporations  when  of  considerable  magnitude  have  proved  sur- 
prisingly difficult  things  to  control  by  law.  A corporation  or  a 
state  can  neither  be  brought  to  court,  nor  put  in  jail.  Law  can 
never  act  upon  it  more  than  imperfectly. 

As  it  is,  however,  the  responsibility  of  states  is  the  predomi- 
nant feature  of  international  law,  and  we  will  adhere  to  the  us- 
ual custom  of  classifying  the  branches  of  that  subject  according 
to  the  rights  and  duties  of  states. 

It  is  possible  to  discuss  any  body  of  law  in  terms  of  either 
rights  or  duties ; either  privileges  or  obligations ; either  liberties 
or  restrictions.  Every  right  implies  a duty  on  the  part  of  others 

^-See  Lawrence,  Int.  Law,  p.  73,  “Probably  it  is  best  to  s'av  with 
Oppenheim  (Int.  Law,  i;  344)  that  persons,  like  territory,  are  objects  of 
International  law,  and  reserve  the  term  subjects  for  those  artificial  persons 
who  are  either  sovereign  states  or  communities  closely  akin  to  them 
through  the  possession  of  some  of  the  distinguishing  marks  of  statehood.” 

i-See,  for  instance,  Hague  Conventions  1907,  in  which  occur  such 
expressions  as  “Every  prisoner  of  war  is  bound  to  give,  etc.”  (IV,  Art. 
9)  “a  belligerent  war  ship  may  not  prolong  its  stay,  etc.”  (XIII,  Arts. 
14,  16,  18,  19,  20). 

i^See  James  Madison,  The  Journal  of  the  Debates  in  the  Convention 
which  framed  the  Constitution  of  the  United  States,  Gaillard  Hunt,  ed., 
N.  Y.,  1908,  2 vol.,  also  in  Madison,  Works,  Hunt,  ed.,  vol.  3;  Elliot, 
Debates,  vol.  5 ; Farrand,  The  records  of  the  Federal  Convention  of  1787, 
New  Haven,  1911,  Remarks  by  Madison,  May  31,  Wilson,  June  25,  King, 
July  14.  Strong,  July  14,  says,  “The  practicability  of  making  laws  with 
coercive  sanction  for  the  states  as  political  bodies  had  been  exploded  in 
all  hands”.  See  also  Madison  letter  to  Jefferson,  Works,  i;344:  The 
Federalist,  Nos.  15,  16,  21,  P.  L.  Ford,  ed.,  pp.  87,  90,  91,  97,  123.  A.  C. 
McLaughlin,  The  Confederation  and  the  Constitution,  Am.  Nation  Ser., 
vol.  10,  pp.  242,  245.  The  constitution  of  the  German  Empire  does  pro- 
vide for  the  legal  coercion  of  states  through  a process  known  as  “Federal 
Execution”,  but  the  law  of  the  empire  acts  directly  on  individuals. 


19] 


INTRODUCTION 


19 


to  expect  its  observance.  Treatises  on  international  law,  as  on 
all  other  departments  of  law,  commonly  treat  parts  of  the  sub- 
ject by  describing  duties,  other  parts  by  describing  rights.  In 
fields  where  liberty  of  action  is  the  rule  and  restriction  the  ex- 
ception, convenience  dictates  a treatment  from  the  standpoint  of 
duties,  while  when  the  reverse  is  true,  when  restriction  is  the  rule 
and  liberty  of  action  the  exception,  a treatment  from  the  stand- 
point of  rights  is  most  conservative  of  space. 

For  our  purposes,  however,  a classification  based  exclusively 
on  duties  is  necessary.  Our  purpose  is  to  discover  what  obliga- 
tions of  international  law  are  enforced  by  municipal  law.  We 
will  therefore  attempt  to  cover  the  whole  field  of  international 
law  from  the  viewpoint  of  duties.  We  will  not  consider  the 
rights  of  the  United  States  as  such,  but  only  in  so  far  as  they 
imply  a duty  to  respect  equivalent  rights  of  other  states. 

Looking  at  international  law  as  imposing  obligations  upon 
states,  some  of  these  obligations  require  action  or  abstention  on 
the  part  of  the  government,  while  others  require  the  state  to  en- 
force action  or  abstention  on  the  part  of  its  citizens  or  public  of- 
ficers. Duties  of  the  first  character  are  considered  under  four 
heads,  abstention,  acquiescence,  vindication  and  reparation, 
those  of  the  second  under  the  head  prevention. 

The  international  obligations  of  a state  differ  somewhat  ac- 
cording to  differences  in  status  caused  by  the  advent  of  wars. 
Four  general  divisions  are  thus  suggested — obligations  in  time  of 
peace,  obligations  as  a neutral,  obligations  as  a belligerent  toward 
neutrals  and  obligations  as  a belligerent  toward  enemies. 

The  questions  relating  to  the  transition  from  war  to  peace, 
peace  to  neutrality,  etc.,  as  well  as  to  the  advent  of  new  states, 
involve  the  subject  of  recognition.  This  is  a political  question. 
Municipal  law  does  not  lay  down  rules  saying  when  states  shall 
be  recognized,  when  belligerency  and  insurgency  exist,  and  when 
they  cease.  In  these  matters  the  municipal  law  of  the  United 
States  follows  the  political  departments  of  the  government  as 
has  been  repeatedly  affirmed  by  the  courts.^^  It  adjusts  itself  to 
the  new  status  and  recognizes  the  new  condition. 

i^Rose  vs.  Himely,  4 Cranch  241  (1808)  ; Consul  of  Spain  vs.  the 
Conception,  Fed.  Cas,  3137  (1819)  ; Gelston  vs.  Hoyt,  3 Wheat.  246,  324 
(1818)  ; U.  S.  vs.  Palmer,  3 Wheat.  610  (1818)  ; The  Divina  Pastora,  4 
Wheat.  52;  Foster  vs.  Neilson,  2 Pet.  253,  307;  Keene  vs.  McDonough,  8 
Pet.  308;  Garcia  vs.  Lee,  12  Pet.  51 1 ; Williams  vs.  Suffolk  Ins.  Co.,  13  Pet. 
415  (1839)  ; Kennet  vs.  Chambers,  14  How.  38  (1852)  ; The  Prize  Cases, 
2 Black  635;  U.  S.  vs.  Yorba,  i Wall.  412;  U.  S.  vs.  Lynde,  ii  Wall.  632; 


20 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[20 


These  matters  are  therefore  beyond  the  scope  of  our  subject. 
We  will  take  the  conditions  of  peace,  war  and  neutrality  for 
granted  and  discuss  the  municipal  measures  for  enforcing  na- 
tional duties  in  each  of  these  conditions,  classifying  such  duties 
under  the  five  heads,  abstention,  acquiescence,  prevention,  vindi- 
cation and  reparation. 

The  Ambrose  Light,  25  Fed.  Rep.  408  (1885)  ; Jones  vs.  U.  S.  137  U.  S. 
202  (1890)  ; The  Three  Friends,  166  U.  S.  i (1896)  ; Underhill  vs.  Her- 
nandez, 168  U.  S.  250;  Ex  Parte  Toscano,  208  Fed.  Rep.  938  (1913). 
English  cases — The  Pelican,  Edw.  Adm.  Appdx.  D.,  Taylor  vs.  Barkley, 
2 Sim.  213;  Emperor  of  Austria  vs.  Day,  2 Giff  628;  Republic  of  Peru  vs. 
Peruvian  Guano  Co.,  36  Ch  D.  489,  497;  Republic  of  Peru  vs.  Dreyfus, 
38  Ch.  D.  348,  356,  359. 


PART  I.  OBLIGATIONS  IN  TIME  OF  PEACE 


CHAPTER  I.  INTRODUCTORY 

The  obligations  imposed  upon  states  in  time  of  peace  are  in 
general  derived  from  one  fundamental  conception,  which  may  be 
summarized  as  the  principle  of  territorial  independence  or  ter- 
ritorial sovereignty. 

Modern  international  law  was  impossible  until  the  idea  that 
government  and  jurisdiction  are  inseparable  from  territory  had 
received  recognition.  It  is  true  that  these  propositions  are  not 
universally  held  now.  The  principle  that  jurisdiction  extends  by 
race  or  nationality  and  by  the  nature  of  the  act  rather  than  by 
territory  is  still  asserted  and  acted  upon  in  claims  of  jurisdic- 
tion over  citizens  abroad  and  over  any  one  committing  offenses 
against  the  state  or  its  citizens.  It  is,  however,  believed  that 
these  claims  are  to  be  regarded  as  exceptions  to  the  general  rule 
of  territorial  jurisdiction.  The  triumph  of  the  theory  of  territo- 
riality in  jurisdiction  and  government  is  assured  by  the  fact  that 
power  of  coercion,  physical  force,  is  the  foundation  of  both  of 
them,  and  effective  coercion  is  by  the  nature  of  things  exclusive 
within  one  territory.  We  will  therefore  regard  the  following 
propositions  as  the  norms  of  the  law  of  peace : ( 1 ) A state  occu- 
pies a definite  portion  of  territory.  (2)  Within  that  territory 
it  may  organize  itself,  dispose  of  its  land,  resources  and  wealth, 
and  control  the  conduct  of  the  inhabitants  with  perfect  freedom. 
This  may  be  stated  by  saying  that  within  its  territory  it  has  un- 
limited powers  of  government,  property  and  jurisdiction.  (3) 
Outside  of  that  territory  its  power  ceases.^ 

^On  the  theory  and  necessity  of  territorial  sovereignty  see  J.  W. 
Burgess,  Political  Science  and  Comparative  Constitutional  Law,  Boston, 
1898,  I ',52;  Joseph  Story,  Commentaries  on  the  Conflict  of  Laws,  8th  ed.,. 
Boston,  1883,  pp.  8-9,  21-24;  J.  W.  Salmond,  Jurisprudence;  2nd  ed., 
London,  1907;  p.  99;  Justice  O.  W.  Holmes,  in  American  Banana  Co. 
vs.  United  Fruit  Co.,  213  U.  S.  347  (1909)  ; W.  E.  Hall,  International  Law, 
4th  ed.,  London,  1895,  pp.  20-21,  45-46.  J.  E.  Feraud-Giraud,  Etats  et 
Souverains  devant  les  tribunaux  etrangers,  Paris,  1895,  i ;3i-36  discusses  the 
necessary  exemption  of  states  from  foreign  jurisdiction. 


21 


22 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[22 


These  conditions  are  in  fact  imaginary.  They  could  in  com- 
pleteness be  realized  only  if  all  states  were  as  isolated  as  the 
planets.  This  not  being  true,  they  are  subject  to  numerous  ex- 
ceptions, necessitated  by  the  inevitable  peaceful  intercourse  of 
states  and  their  subjects,  and  the  necessary  concurrent  extension 
of  authority  by  all  states  over  the  high  seas,  which  are  within  the 
territory  of  no  state,  and  which  by  physical  facts  can  not  be  so 
appropriated.  States  better  than  human  individuals  accord 
with  Herbert  Spencer’s  theory  of  liberty,^  but  even  in  their  case 
we  must  modify  this  absolute  right  of  liberty  by  the  proviso  that 
s,  like  liberty  be  accorded  to  others. 

It  is  the  determination  of  these  exceptions  to  the  ideal  con- 
dition of  absolute  territorial  independence  which  forms  the  body 
of  the  law  of  peace.  Were  there  no  exceptions,  obviously  there 
would  be  no  more  need  for  law  regulating  relations  between 
states  than  there  is  for  law  regulating  relations  between  the 
inhabitants  of  the  earth  and  the  inhabitants  of  Mars.  Consisting 
of  rules  governing  exceptions  to  the  general  rule,  the  law  is  ordi- 
narily expressed  in  terms  of  rights.  Thus  we  speak  of  the  state ’s 
right  to  a limited  jurisdiction  over  its  subjects  abroad,  and  over 
its  merchant  vessels  on  the  high  seas,  and  its  exclusive  right  of 
jurisdiction  over  its  ambassadors,  public  vessels  and  armed 
forces  abroad.  We  propose,  however,  to  look  at  the  matter  from 
the  reverse  side  of  duties.  We  are  not  interested  in  the  laws  of 
the  United  States  providing  for  the  exercise  of  rights  as  such ; 
but  as  they  indicate  the  limits  of  these  rights,  and  imply  an  ob- 
ligation of  the  United  States  not  to  exceed  them. 

The  obligations  of  states  under  international  law  may  be 
classified  under  five  heads:  (1)  abstention,  (2)  acquiescence, 
(3)  prevention,  (4)  vindication,  (5)  reparation.  A state  is  un- 
der the  obligation  to  abstain,  with  a few  exceptions,  from  the  ex- 
ercise of  authority  outside  of  its  territory,  to  acquiesce  in  the  ex- 
ercise, mthin  its  territory,  of  authority  by  foreign  states  in  a 
few  cases,  to  prevent  its  citizens  and  public  officers  from  doing 
acts  injurious  to  foreign  states  and  their  subjects,  to  vindicate  its 
sovereignty  and  position  in  the  family  of  nations  by  treating  vio- 
lations of  international  law  by  foreign  persons  or  officers  in  a 
manner  prescribed  by  international  law,  and  to  make  reparation 
for  breaches  of  international  law  by  its  citizens  or  public  officers. 

^Herbert  Spencer,  Social  Statics,  together  with  Man  versus  the  State, 
Kew  York,  1910,  p.  36. 


CHAPTER  II.  OBLIGATIONS  OF  ABSTENTION 


INTRODUCTORY 

The  obligations  of  abstention  are  derived  from  the  funda- 
mental principles  of  international  law.  The  state  is  bound  to 
abstain  from  the  exercise  of  sovereignty  and  jurisdiction  over 
acts  or  persons  in  any  but  its  own  territory,  with  a few  excep- 
tions. These  duties  relate  primarily  to  the  conduct  of  the  gov- 
ernment. If  the  government  chooses  to  ignore  them  by  sovereign 
acts  such  as  intervention  or  conquest,  municipal  law  can  have  no 
restraining  effect.  Statutes,  treaties,  and  court  decisions,  have, 
however,  expressed  legal  limitations  upon  the  extension  of  power 
outside  of  the  territory,  and,  until  changed  by  a sovereign  act,  are 
laws  enforcing  the  duty  of  abstention  as  against  the  government. 
By  their  mere  statement  as  law,  these  limitations  tend  to  be  ob- 
served by  the  sovereign  power,  and,  of  course,  may  be  enforced 
by  coercive  measures  as  against  inferior  officers  of  government. 

The  obligations  of  abstention  may  be  considered  under  the 
three  heads,  (1)  acquisition  of  territory,  (2)  use  of  force  against 
foreign  states  or  their  subjects,  (3)  exercise  of  jurisdiction  out- 
side of  the  territorial  limits. 

ACQUISITION  OP  TERRITORY 

(1)  The  right  to  acquire  unoccupied  territory  or  territory 
occupied  only  by  savages  is  generally  recognized  by  international 
law  and  has  been  affirmed  by  the  law  of  the  United  States.  In 
the  Declaration  of  the  Berlin  congress  of  1885  it  was  provided 
that  territory  in  Africa  should  only  be  acquired  with  effective 
title  after  notification  and  actual  occupation.  The  United  States 
signed  this  declaration,  but  as  it  was  not  submitted  to  the  senate 
for  ratification  it  is  not  a binding  treaty.^  The  claims  of  the  In- 
dians to  territory  has  been  held  to  be  no  bar  to  the  rights  of  ac- 
quisition by  ciyilized  nations  through  discovery  and  occupation, 
in  a number  of  cases."  The  acquisition  of  unoccupied  guano 
islands  by  action  of  citizens  of  the  United  States  was  provided 

^See  Moore’s  Digest  i ;267. 

Uohnson  vs.  McIntosh,  8 Wheat.  543  (1823)  ; Martin  vs.  Waddell, 
16  Pet.  367;  Mortimer  vs.  N.  Y.  Elevated  R.  R.  Co.,  6 N.  Y.  S.  89  (1889)  ; 
Ketchum  vs.  Buckley,  99  U.  S.  188. 


23 


24 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[24 


for  by  statute  in  1856,^  under  conditions  designed  to  prevent 
such  acquisition  of  islands  already  under  the  sovereignty  of  for- 
eign states,  but  the  fact  that  another  government  had  formerly 
occupied  an  island  and  subsequently  abandoned  it  was  held  no 
bar  to  its  acquisition  under  this  act.^ 

(2)  The  acquisition  of  land  by  accretion,  or  the  gradual  and 
imperceptible  building  up  of  territory  by  rivers  or  ocean  tides 
has  been  upheld  as  conferring  legitimate  title  by  the  United 
States  courts  in  the  case  of  private  owners  and  states  of  the 
union,®  a view  which  implies  an  acquisition  of  sovereignty  over 
such  accretions  by  the  United  States.  This  method  of  acquisi- 
tion was  supported  in  an  English  case  which  acknowledged  the 
sovereignty  of  the  United  States  over  mud  islands  formed  near 
the  mouth  of  the  Mississippi.® 

(3)  Prescription  has  been  held  to  confer  good  title  to  ter- 
ritory claimed  by  states,^  and  by  individuals  as  against  the  gov- 
ernment.® It  has  also  been  impliedly  recognized  as  founding 
good  title  in  various  boundary  treaties  of  the  United  States.® 

(4)  The  acquisition  of  land  by  conquest  was  denounced  in 
resolutions  proposed  at  the  International  American  congress  in 
Washington,  1889-1890,  which  stated  ‘‘that  the  principle  of  con- 
quest shall  not,  during  the  continuance  of  this  treaty  of  arbitra- 
tion, be  recognized  as  admissable  under  American  Public  Law.  ’ 
The  United  States  acceded  to  the  resolution,  but  as  the  plan  of 

3Act.  Aug.  5,  1856,  Rev.  Stat.  5570-55/8. 

^Jones  vs.  U.  S.  137  U.  S.  202,  220,  (1890).  See  Moore’s  Digest, 
I -299,  556-580. 

^Ocean  City  Association  vs.  Schwer,  46  Atl.  Rep.  690,  (N.  Y.  1900)  ; 
Mulry  vs.  Norton,  100  N.  Y.  424;  Wallace  vs.  Driver,  61  Ark.  429;  Jeffries 
vs.  East  Omaha  Land  Co.,  134  U.  S.  178,  191,  (1890)  ; St.  Louis  vs. 
Rutz,  138  U.  S.  226,  (1891)  ; Nebraska  vs.  Iowa,  143  U.  S.  359,  368,  (1892). 

®The  Anna,  5 Rob.  373.  (1805).  See  Moore’s  Digest,  i ;269-273. 

^Rhode  Island,  vs.  Mass.,  4 How.  591,  639,  (1846)  ; Handly’s  Lessee 
vs.  Anthony,  5 Wheat.  378,  (1820)  ; Indiana  vs.  Ky.,  136  U.  S.  479,  (1890)  ; 
159  U.  S.  275,  (1895)  ; 163  U.  S.  520,  (1897),  167  U.  S.  270. 

^U.  S.  vs.  Chavez,  175  U.  S.  509,  522,  (1899)  ; Peabody  vs.  U.  S.  175 
U.  S.  546;  Chavez  vs.  U.  S.  175  U.  S.  552. 

^Treaty  with  Great  Britain,  1818,  art.  3,  Malloy  p.  632;  1827,  art.  i, 
p.  644.  See  also  treaty  between  Great  Britain  and  Venezuela,  1897, 
adopted  as  a basis  of  the  boundary  arbitration  demanded  by  the  United 
States,  Art.  4 affirmed  that  fifty  years  prescription  gave  good  title.  See 
Moore’s  Digest,  1 1293. 

loSee  Moore’s  Digest,  1 1292 : 7 ;3i8. 


25] 


IN  TIME  OP  PEACE 


25 


arbitration  upon  which  it  was  contingent  did  not  become  effect- 
ive, the  resolution  did  not  become  law.  The  courts  have  held  that 
under  the  constitution  congress  has  no  power  to  declare  wars  for 
conquest  and  the  president  to  wage  them  for  that  purpose,  hence 
the  United  States  can  not  acquire  new  territory  by  conquest.^^ 
Territory  under  military  government  or  occupation  is,  therefore, 
not  territory  of  the  United  States  for  purposes  of  internal  admin- 
istration. This  interpretation  of  constitutional  law  is,  however, 
no  guarantee  against  the  seizure  of  foreign  territory  by  conquest, 
for  the  courts  will  recognize  a forced  cession  or  sale  of  territory 
concluded  by  treaty  and  they  have  specifically  held  that  acquisi- 
tion by  conquest  is  proper  by  international  law,  even  though  pro- 
hibited by  the  law  of  the  United  States.’^- 

(5)  Acquisition  of  territory  by  treaty,  whether  from  forced 
cession,  desire  of  the  population,  or  purchase  has  been  upheld  as 
inherent  in  the  treaty  making  power  of  the  government, and 
has  been  the  usual  means  by  which  the  United  States  has  ac- 
quired territory.^^ 

The  law  of  the  United  States  thus  permits  of  acquisitions  of 
territory  by  occupation,  accretion,  prescription,  and  treaty, 
while  it  requires  the  government  to  abstain  from  acquiring  land 
by  conquest.  The  question  is,  however,  a political  rather  than  a 
legal  question,  and  so  the  courts  have  held.^®  If  the  political  de- 
partment of  government  indicates  by  suitable  evidence  that  it  re- 
gards new  territory  as  acquired,  the  courts  will  follow  it.  The 
duty  to  abstain  from  acquiring  land  occupied  by  other  states  is, 
therefore,  one  left  to  the  discretion  of  the  political  department 

iiFlemming  vs.  Page,  g How.  603,  (1849).  Contra  see  Am.  Ins.  Co., 
vs.  Canter,  i Pet.  511,  (1828).  See  Self-Denying  Ordinance  in  reference 
to  Cuba,  Apr.  20,  1898.  30  stat.  739  sec.  4, 

i^On  thus  subject  see  Flemming  vs.  Page  9,  How.  603,  (1849)  ; U.  S. 
vs.  Hayward,  2 Gall.  485;  U.  S.  vs.  Rice,  4 Wheat.  246;  Moore’s  Digest, 
i;29o:  71257-265,  315.  Neely  vs.  Henkel  180  U.  S.  109,  119-170  (1900) 
Moore’s  Digest  i ;535. 

i^See  Chief  Justice  Marshall,  in  Am,  Ins.  Co.  vs.  Canter,  i Pet.  511, 
(1828). 

i^Treaties  with  France  1803,  Malloy  p.  508,  ceding  La.;  Spain  1819, 
p.  1651,  ceding  Fla.;  Mexico,  1848,  p.  1107,  1853,  p.  1121,  ceding  south- 
western territory;  Russia,  1867,  p.  1521,  ceding  Alaska,  Spain,  1898,  p.  1690, 
ceding  Philippines  and  Porto  Rico,  Panama,  1903,  p.  1351,  granting  Canal 
Zone.  See  also  Joint  Resolutions  of  Congress,  Mch.  i,  1845,  5 stat,  797; 
Dec.  29,  1845,  9 stat.  108,  admitting  Texas  to  the  Union,  and  July  7,  1898, 
incorporating  Hawaii. 

^Uones  vs.  U.  S.,  137  U.  S.  202,  (1890)  ; Foster  vs.  Neilson,  2 Pet.  253. 


26  INTERNATIONAL  LxVW  AND  MUNICIPAL  LAW  [26 

of  the  government,  and  is  beyond  the  power  of  municipal  law  to 
control. 

USE  OF  FORCE  AGAINST  FOREIGN  STATES  OR  THEIR  SUBJECTS 

The  use  of  force  may  be  resorted  to  (1)  against  a foreign 
state  itself,  as  in  intervention,  war  or  general  reprisals;  (2) 
against  subjects  of  a foreign  state  by  way  of  special  reprisals,  or 
(3)  against  foreigners  for  breaches  of  municipal  law.  The  use 
of  force  against  aliens  within  the  territorial  jurisdiction  in  the 
usual  process  of  enforcing  municipal  law  may  unquestionably 
be  exercised,  and  gives  rise  to  no  duty  of  abstention.  The  law  of 
peace,  however,  requires  a government  to  abstain  from  using 
force  against  foreign  states  or  their  subjects  outside  of  its  ter- 
ritory. 

Such  a use  of  force  against  the  foreign  state  or  within  its 
territory  is  known  as  intervention.  In  treaties  with  Cuba  and 
Panama  the  United  States  has  been  specifically  given  the  right 
to  intervene.^® 

(1)  The  Hague  convention  relating  to  the  pacific  settlement 
of  international  disputes,  which  recommends  mediation,  commis- 
sions of  inquiry  and  arbitration  in  cases  of  disagreement,^^  as 
well  as  numerous  individual  arbitration  treaties,^®  recognizes  the 
duty  to  abstain  from  the  use  of  force  against  foreign  states.  An- 
other of  the  Hague  conventions^^  requires  the  United  States  to 
abstain  from  the  use  of  armed  force  for  the  collection  of  contract 
debts.  These  treaties  have  been  ratified  and  are  law  in  the  United 
States,  but  they  are  addressed  to  the  political  department  of  the 
government.  The  courts  in  applying  the  law’  will  recognize  sov- 
ereign acts  of  force  even  when  prohibited  by  treaty.  No  power 
of  municipal  law  can  compel  resort  to  arbitration  or  prohibit  in- 
tervention or  a resort  to  arms,  but  the  definite  statement  in 
treaties  of  an  obligation  to  abstain  from  the  use  of  armed  forces 

^®Treaty  with  Cuba,  1903,  Malloy,  p,  362,  permits  intervention  to 
preserve  independence,  and  with  Panama,  1903,  art.  23,  p.  1356,  to  protect 
the  canal. 

i^Hague  conventions,  1899,  i ; 1907,  i. 

i®There  are  two  kinds  of  individual  arbitration  treaties ; special,  re- 
lating to  the  arbitration  of  specified  claims  alone,  as  the  treaty  of  Wash- 
ington with  Great  Britain,  of  1871 ; and  general,  requiring  arbitration  of 
all  questions  of  a certain  class.  Conventions  of  the  latter  class  were  con- 
cluded with  a large  number  of  powers  in  1908  to  last  for  five  years, 
recourse  to  the  Hague  court  being  provided  for. 

i^Hague  conventions,  1907,  ii. 


27] 


IN  TIME  OP  PEACE 


27 


undoubtedly,  in  itself,  offers  a sanction  to  tlie  observance  of  this 
duty  by  the  political  authorities  of  government.  The  constitu- 
tional provision  giving  congress  alone  power  to  declare  war  ap- 
pears also  to  prevent  a hasty  resort  to  arms.  Experience  has, 
however,  demonstrated  that  the  executive  can  create  a situation 
from  which  congress  can  not  recede.-®  The  use  of  force  in  cases 
not  amounting  to  war,  such  as  naval  demonstration,  or  the  em- 
ployment of  armed  forces  to  protect  embassies  in  time  of  insur- 
rection, has  generally  been  authorized  by  congress.  Such  action 
is  not,  however,  required  by  law.  A number  of  cases  have  oc- 
curred, notably  the  Boxer  uprising  in  China,  when  armed  force 
was  used  without  express  authorization,  and  its  use  subsequently 
ratified  by  congress.-^ 

The  use  of  force  on  foreign  territory  to  suppress  marauders 
and  pirates  and  prevent  maltreatment  of  citizens  has  been  justi- 
fied on  the  grounds  of  self  defense.  Thus  Jackson’s  invasion  of 
Florida  in  1819,  and  various  invasions  of  Mexican  territory  in 
pursuit  of  marauding  Indians;  the  occupation  of  Amelia  island 
by  United  States  forces  in  1817  to  suppress  a nest  of  pirates ; the 
landing  of  troops  in  Vera  Cruz,  Mexico,  1914,  and  Peking,  China, 
1899 ; and  the  bombardment  of  Greytown,  Nicaragua  in  1854  to 
protect  American  citizens  were  justified  by  the  political  depart- 
ment of  the  United  States  government  on  this  basis.  Great  Bri- 
tain in  the  same  manner  attempted  to  justify  the  seizure  in  Amer- 
ican waters  and  destruction  of  the  Caroline,  in  1837,  against  the 
vigorous  protest  of  the  United  States.^^ 

The  determination  of  circumstances  warranting  intervention 
in  self  defense  is  in  any  case  a political  question  and  forms  an 
exception  to  the  general  rule  of  international  law  that  the  state 
must  abstain  from  the  use  of  force  on  foreign  territory.  This 
general  rule  of  abstention  is  recognized  and  enforced  by  United 
States  law.  In  the  Navy  Regulations,  the  use  of  force  in  territo- 
rial waters  and  landing  of  armed  troops,  without  express  permis- 
sion of  the  local  authorties,  is  forbidden.  Military  law  also  re- 
quires strict  respect  for  foreign  territory.-^.  Instructions  of  the 

20As  in  the  Mexican  war. 

2iSee  Moore’s  Digest,  7;io9-ii8,  Navy  regulations,  1913,  sec.  1647. 

22For  discussion  of  these  and  other  cases  relating  to  self  defense  as  a 
justification  for  the  violation  of  foreign  territory,  see  Moore’s  Digest, 
2 ;400-425. 

23Navy  Regulations,  1913,  Sec.  1645-1648.  Army  Regulations,  1913, 
Sec.  89,  ch.  3,  Dig.  op.  judge  Ad.  Gen.  1912,  p.  90.  Moore’s  Digest,  2;364. 
For  similar  duties  in  time  of  war  toward  neutrals,  see  infra,  p.  212  et  seq. 


28 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[28 


Department  of  State  further  aid  in  the  performance  of  this  duty. 
In  1887  instructions  to  a Charge  d ’affaire  in  Peru  said,  “It  is  al- 
ways expected  that  the  agents  of  the  department  abroad  will  ex- 
ercise extreme  caution  in  summoning  war  vessels  to  their  aid  at 
critical  junctures,  especially  if  there  be  no  practical  purpose  to 
be  subserved  by  their  presence.”-^  The  courts  have  affirmed  this 
view  in  dicta.  Where  a seizure  under  the  non-intercourse  act 
was  made  in  foreign  territorial  waters  the  court  said,  “it  is  cer- 
tainly an  offense  against  the  power  which  must  be  adjudicated 
between  the  two  governments,”-®  and  where  a naval  officer  en- 
tered foreign  territory  to  recover  piratically  seized  property  of 
American  citizens  it  held-®  that  he  acted  beyond  his  right,  but 
in  both  of  these  cases  the  foreign  government’s  claim  was  held  to 
be  subject  to  diplomatic  settlement  only.  Municipal  law  could 
offer  no  relief.  Where  special  permission  to  pursue  marauders  on 
foreign  territory  or  to  preserve  order  is  given  by  treaty,  as  is  the 
case  in  several  Mexican  agreements  and  treaties  with  Cuba  and 
Panama,  no  duty  of  abstention  is  involved.^’' 

In  the  present  state  of  the  law  the  enforcement  of  the  duty 
to  abstain  from  intervention  and  the  use  of  force  on  foreign  ter- 
ritory belongs  primarily  to  the  executive  through  its  control  of 
military  and  naval  forces  and  diplomatic  officers,  as  well  as  of 
the  general  conduct  of  foreign  relations.  Judicial  authorities 
may  add  their  sanction  by  the  enforcement  of  the  usual  princi- 
ples of  administrative  and  military  law.  Violations  of  the  inter- 
national obligation,  specifically  authorized  by  the  political  de- 
partments of  government,  are,  however,  beyond  the  power  of  mu- 
nicipal law  to  control. 

(2)  Reprisals  may  be  divided  into  four  classes:  public  and 
private  general  reprisals,  public  and  private  special  reprisals. 
General  reprisal  is  the  right  to  seize  any  property  of  a foreign 

24Mr.  Bayard,  Secretary  of  State,  to  Mr.  Neal,  Charge,  Nov.  i6,  1887; 
see  Moore’s  Digest  7;  109.  See  also  Consular  Regulations,  1896,  Sec.  113. 

25Ship  Richmond  vs.  U.  S.,  9 Cranch  102,  104,  (1815)  See  also  the 
Itata  1892,  Moore,  Int.  Arb.  pp.  3067-3071. 

26Davisson  vs.  Sealskins,  2 Paine  324.  See  also  Nelson,  Att.  Gen., 
4 op,  285  (1843)  ; Black,  Att.  Gen.  9 op.  286,  (1859)  i Moore’s  Digest, 

I ;362-365. 

27Protocols  with  Mexico,  1882,  1883,  1884,  1885,  1890,  1892,  1896,  Mal- 
loy pp.  1144-1177.  Most  of  them  were  to  be  in  force  one  year,  but  that  of 
1896  specified  that  it  should  last  until  Kid’s  band  of  Indians  be  extermin- 
ated or  pacified.  See  also  treaty  with  Cuba,  1903,  p.  362;  Panama,  1903, 
art  23,  p.  1356;  Nicaragua,  1867,  art.  15-17,  p.  1285. 


29] 


IN  TIME  OF  PEACE 


29 


state  or  its  citizens  on  the  sea,  and  is  equivalent  to  a state  of  war, 
although  in  the  trouble  with  France  in  1798-1799  general  repri- 
sals were  authorized  by  congress^*  without  an  express  declara- 
tion of  war.  The  courts,  however,  held  that  war  actually  ex- 
isted."^ By  the  abolition  of  privateering,  private  general  repri- 
sals are  no  longer  permitted.  Public  general  reprisals  are  still 
resorted  to  but  are  considered  in  the  chapters  devoted  to  obliga- 
tions in  time  of  war. 

By  private  special  reprisals,  persons  wronged  by  a foreign 
state  were  formerly  permitted  by  commission  of  their  sovereign 
to  indemnify  themselves  by  seizing  property  belonging  to  any 
subject  of  that  state  on  the  high  seas  in  time  of  peace.  This  prac- 
tice would  amount  to  an  aggravated  form  of  privateering  and 
would  now  be  regarded  as  little  short  of  piracy.  The  legitimacy 
of  the  practice  seems  to  be  admitted  by  the  constitutional  pro- 
vision giving  congress  power  to  grant  letters  of  marque  and  repri- 
sal, though  it  was  denied  by  Attorney  General  Randolph  in  an 
opinion  in  1793.  At  present  the  practice  is  undoubtedly  obso- 
lete.^® The  only  question  therefore  which  concerns  us  here  is 
that  of  public  special  reprisals.  Under  this  right  the  seizure  of 
vessels  on  the  high  seas  or  in  the  jurisdiction  of  their  own  state 
through  such  institutions  as  pacific  blockade  is  generally  consid- 
ered legitimate  by  writers  on  international  law.  As  the  United 
States  has  not  resorted  to  reprisals  in  time  of  peace,  except  in  the 
case  of  France  in  1799  which  the  courts  regarded  as  war,  the 
courts  have  had  no  opportunity  to  pass  upon  the  legitimacy  of 
seizures  by  way  of  reprisal,  but  they  would  undoubtedly  be 
bound  by  any  act  of  the  political  department  of  the  government 
in  this  respect.  The  power  to  make  war  would  probably  be  held 
to  include  a power  to  resort  to  lesser  acts  of  violence. 

(3)  The  duty  to  abstain  from  the  use  of  force  outside  of  the 
territory  of  the  United  States  against  foreign  vessels  guilty  of 
infractions  of  local  law,  has  not  been  universally  maintained  by 
the  law  of  the  United  States.  An  act  of  1797^^  still  in  force  au- 
thorizes revenue  officers  to  board  foreign  vessels  four  leagues 
from  the  coast ; and  in  Church  vs.  Hubbart^-  Chief  Justice  Mar- 

28May  28,  1798,  I stat.  361;  July  9,  1798,  i stat.  578;  Mch.  3,  1799, 
I stat.  743. 

29Bas.  vs.  Tingey,  4 Dali.  37,  (1800)  ; Talbot  vs.  Seaman,  i Cranch 
I,  282,  (1801)  ; Moore’s  Digest,  7;i55-i53. 

soRandolph,  Att.  Gen.  i op.  30,  see  Moore’s  Digest,  7;ii9. 

3iAct.  Mch.  2,  1797,  Sec.  27,  rev.  stat.  2760;  Moore’s  Digest,  i ;725. 

32Church  vs.  Hubbart,  2 Cranch  187;  Scott,  343. 


30 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[30 


shall  upheld  the  right  to  make  seizures  on  the  high  sea  for 
breaches  of  municipal  regulations  in  a case  involving  such  a seiz- 
ure by  Brazil;  but,  a few  years  later,  in  Rose  vs.  Himely,^^ 
changed  his  mind,  and  denied  the  validity  of  such  seizures.  The 
embargo  and  non-intercourse  acts  of  the  early  nineteenth  century 
did  not  permit  the  seizure  of  foreign  vessels  outside  of  territo- 
rial jurisdiction.  The  rule  laid  down  by  Lord  Stowell  in  Le 
Louis,^^  that  visit,  search  and  seizure  of  foreign  vessels  beyond 
territorial  jurisdiction  is  not  permitted  in  time  of  peace,  was 
followed  by  Chief  Justice  Marshall  in  The  Antelope,^®  and  ap- 
pears to  be  the  usual  law  of  the  United  States.  Exceptions  to 
this  statement  are  found  in  the  provisions  of  treaties  authorizing 
the  seizure  in  restricted  zones  of  slave  traders  flying  foreign  flags, 
and  the  universally  acknowledged  right  of  seizing  pirate  vessels. 
These  subjects  will  be  discussed  in  considering  the  exercise  of 
jurisdiction  over  the  high  seas.  Cases  have  affirmed  that  unequiv- 
ocal acts  of  the  sovereign  authorizing  seizures  beyond  the  three 
mile  limit  would  be  obligatory,  though  such  acts  should  if  possi- 
ble be  interpreted  to  accord  with  international  law.®®  Neverthe- 
less, in  the  Alaskan  seal  fishery  dispute  of  1886  British  sealing 
vessels  were  seized  sixty  miles  from  shore  and  their  seizure  justi- 
fied by  courts  under  a statute  wffiich  by  no  means  unequivocally 
authorized  such  acts.®^  The  attitude  taken  by  the  courts,  how- 
ever, was  that  the  territorial  jurisdiction  of  the  United  States  ex- 
tended one  hundred  Italian  miles  from  the  shore;  the  question 
will  therefore  be  adverted  to  in  considering  the  extent  of 
jurisdiction. 

While  the  duty  to  abstain  from  the  use  of  force  against  for- 
eign vessels  on  the  high  seas  in  time  of  peace  is  primarily  to  be 
controlled  by  executive  authority,  yet  by  the  rule  requiring  legal 

33Rose  vs.  Himely,  4 Cranch  241,  (1808),  see  also  Hudson  vs.  Guies- 
tier,  6 Cranch  281,  (1810)  ; The  Appollon,  g Wheat.  362,  (1824).  In  the 
Itata,  1892,  Moore’s  Int.  Arb.,  p.  3067-3071,  the  U.  S.  was  held  liable  in 
damages  for  a seizure  in  Chilean  waters,  see  Scott,  cases  note  p.  344. 
Similar  view  was  held  by  the  U.  S.  supreme  court  in  the  Ship  Richmond 
vs.  U.  S.  9 Cranch  102,  104  (1815).  Moore’s  Digest,  2;364. 

34Le  Louis,  2 Dods.  210,  (1817). 

^^TheAntelope,  10  Wheat.  66,  (1825). 

36Murray  vs.  The  Charming  Betsy,  2 Cranch  64,  (1804),  which  held 
that  the  non-intercourse  act  should  not  be  interpreted  as  authorizing  the 
seizure  of  foreign  vessels  on  the  high  seas  or  prohibiting  the  sale  of 
national  vessels  to  foreign  countries. 

37See  Moore’s  Digest,  1 1895. 


31] 


IN  TIME  OF  PEACE 


31 


adjudication  of  all  seizures  courts  may  add  their  sanction  to  the 
enforcement  of  this  duty. 

EXERCISE  OF  EXTRA-TERRITORIAL  JURISDICTION 

The  final  duty  of  abstention  requires  a state  to  refrain  from 
exercising  jurisdiction  beyond  its  territory,  with  a few  excep- 
tions. For  convenience  we  may  consider  the  matter  under  the 
four  heads;  (1)  extent  of  territory,  (2)  jurisdiction  over  the 
high  seas,  (3)  jurisdiction  over  acts  committed  in  foreign 
countries  and  (4)  jurisdiction  over  suits  against  foreign  states. 

(1)  Where  the  territory  of  the  United  States  is  adjacent 
to  that  of  foreign  states,  the  boundary  has  in  most  cases  been 
defined  by  treaties  which  are  binding  upon  the  courts  in  assum- 
ing jurisdiction  of  cases. In  the  absence  of  treaty  stipulations 
river  boundaries  have  been  held  to  exist  in  the  middle  of  the 
main  current.®^  In  the  case  of  international  rivers,  however, 
a number  of  treaties  have  provided  that  the  jurisdiction  is  sub- 
ject to  the  right  of  free  navigation  by  vessels  of  all  nations,^® 
and  the  courts  have  maintained  this  position,  holding  that  a 
foreign  vessel  could  not  be  seized  for  ^ violation  of  local  laws 
while  passing  through  American  waters  of  an  international  river, 
en  route  to  a foreign  port.^^  The  same  freedom  of  navigation  is 
permitted  upon  the  Great  Lakes  by  treaties  with  Great  Britain.'*^ 

The  extent  of  territorial  jurisdiction  on  the  sea  for  exclusive 
fishing  privileges  was  fixed  at  the  three  mile  limit  in  the  treaty 

38Cushing  Att.  Gen.  8 op.,  175;  U.  S.  vs.  Texas,  162  U.  S.  i,  (1896). 

39Handly  vs.  Anthony,  5 Wheat.  374;  Ala.  vs.  Ga.,  25  How.  505;  Iowa 
vs.  111.,  147  U.  S.  I,  (1893).  Moore’s  Digest,  i ;6i5-62i. 

^^See  Treaties  with  Great  Britain,  1783,  Art.  8,  p.  589.  Art.  3,  Malloy, 
p.  643;  1846,  Art.  2,  p.  657;  1854-1866,  Art.  4,  p.  671,  Art.  26,  p.  71 1 decree- 
ing free  navigation  in  the  Mississippi,  St.  Lawrence,  St.  John,  Yukon, 
Stikine,  and  Porcupine.  With  Mexico,  1848,  Art.  6,  7,  p.  iiii;  1853,  Art. 
4,  p.  1123,  decreeing  free  navigation  in  the  Colorado,  Gila,  and  Bravo. 
In  a treaty  with  Bolivia  in  1850,  Art.  26,  p.  122,  it  is  stated  that  “in 
accordance  with  fixed  principles  of  international  law,  Bolivia  regards  the 
rivers  Amazon  and  La  Plata  * * opened  by  nature  for  the  commerce 
of  all  nations”  and  in  that  with  Argentine  Republic  of  1853,  Art.  6,  p.  19, 
the  Parana  and  Uruguay  are  declared  free  to  commerce  even  in  time  of 
war,  with  the  exception  of  contraband. 

^^The  Appollon,  9 Wheat.  362,  (1824). 

^^Treaty  with  Great  Britain,  1871,  art.  28,  30,  Malloy,  p.  711 ; 1842;. 
art.  2,  p.  652;  1854-1866,  art.  4,  p.  671. 


32 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[32 


of  1818  with  Great  Britain/^  In  treaties  with  Mexico,  however, 
the  boundary  between  the  two  countries  was  stated  to  begin 
three  marine  leagues  or  nine  miles  from  land  in  the  Gulf  of 
Mexico,^^  and  an  act  of  1797'^'^  still  in  force  authorizes  revenue 
officers  to  board  foreign  vessels  four  leagues  from  shore.  The 
whole  of  bays  with  headlands  two  leagues  apart  or  even  more 
liave  been  held  by  statute,  official  opinions  and  judicial  decisions 
to  be  entirely  within  territorial  jurisdiction.^® 

By  an  act  of  1868^^  the  killing  of  fur  seal  ‘‘within  the  limits 
of  Alaskan  Territory  or  in  the  waters  thereof”  was  prohibited. 
Vessels  engaged  in  such  business  were  declared  forfeitable  and 
their  officers  and  crew  liable  to  criminal  punishment.  In  1886 
the  United  States  District  court  of  Alaska^®  held  a number  of 
seizures  of  British  vessels  by  revenue  cutters,  sixty  miles  from 
shore,  valid  under  this  statute.  It  reached  this  decision  by 
applying  the  meaning  of  Alaskan  territorial  waters  given  in  a 
Russian  Ukase  of  1821,  which  it  held  was  the  meaning  adopted 
by  the  political  department  of  the  United  States  government. 
This  Ukase  had  declared  the  territorial  jurisdiction  of  Russia 
to  extend  one  hundred  Italian  miles  from  the  shore,  and  the 
United  States  claimed  to  have  purchased  this  jurisdiction  with 
the  territory  in  1867.  The  vessels  were  condemned  and  the 
officers  held  liable  to  criminal  punishment.  Upon  Great 
Britain’s  protest  the  vessels  and  men  were  released  and  orders 
sent  to  Alaska  to  discontinue  pending  proceedings.  Neverthe- 
less in  1887  and  1889  other  vessels  were  condemned  by  the  same 
court.  The  act'  of  1868  was  amended  in  1889,"^®  the  country’s 
jurisdiction  being  extended  “to  all  the  dominions  of  the  United 
States  in  Behring  Sea”.  In  an  arbitration  of  the  question  in 

•^sTreaty  with  Great  Britain,  i8i8,  art  i,  Malloy,  p.  631. 

^^Treaty  with  Mexico,  1848,  art.  5,  Malloy,  p.  1109;  1853,  art.  i, 
p.  1122. 

■*^Act.  Mch.  2,  1797,  sec.  27;  rev.  stat.  2760,  See  Moore’s  Digest,  i ;725. 

■**5For  Delaware  Bay,  see  Randolph,  Att.  Gen.,  i op.  321,  Moore’s 
Digest,  I ;735 ; Chesapeake  Bay,  Stetson  vs.  U.  S.,  Moore,  Int.  Arb.,  4; 
4337-4341 ; Moore’s  Digest,  i : 741 ; Buzzard’s  Bay,  Public  Acts  Mass., 
ch.  I,  sec.  12,  (1890)  ; Commonwealth  vs.  Manchester,  152  Mass.  230, 
(1890),  affirmed  Manchester  vs.  Mass.,  139  U.  S.  240. 

^"Act  June  27,  1868,  Rev.  Stat.  1856. 

•‘sSee  U.  S.  vs.  La  Ninfa,  49  Fed.  Rep.  575,  (1891)  ; U.  S.  vs.  the 
James  G.  Swan,  20  Fed.  Rep.  108;  U.  S.  vs.  The  Alexander,  60  Fed. 
Rep.  914. 

*®Act.  Mch.  2,  1899,  25  Stat.  1009. 


33] 


IN  TIME  OF  PEACE 


33 


1892  the  United  States’  claim  of  jurisdiction  was  denied;  thus 
‘‘the  dominions  of  the  United  States  in  Behring  Sea”  were 
held  in  subsequent  cases  to  extend  only  to  the  three  mile  limit.®® 

It  is  evident  that  the  attitude  taken  by  the  United  States 
on  the  limits  of  territorial  jurisdiction  has  been  by  no  means 
uniform.  The  courts  have  held  that  the  determination  of  the 
matter  either  as  to  boundary  or  jurisdiction  over  the  sea  is  a 
political  question,  and  that  they  are  bound  to  follow  the  view 
of  the  political  department  of  the’  government.®^  Nevertheless 
the  interpretation  of  political  acts  bearing  on  these  points  often 
involves  questions  of  legal  definition,  and  the  courts  undoubtedly 
may  exercise  an  effective  authority  in  enforcing  the  country’s 
duty  of  abstaining  from  the  exercise  of  jurisdiction  outside  of  its 
territory,  by  refusing  to  take  cognizance  of  cases,  where,  accord- 
ing to  international  law,  or  national  acts  interpreted  according 
to  international  law,  the  national  jurisdiction  does  not  extend. 
In  such  cases,  therefore,  the  courts  may  apply  rules  of  interna- 
tional law  directly  as  rules  of  decision. 

(2)  The  exercise  of  jurisdiction  over  vessels  of  foreign 
nations  seized  on  the  high  seas  in  time  of  war,  by  way  of  reprisals 
or  when  ordered  by  municipal  law,  has  been  considered.  The 
general  principle  appears  to  be  recognized  that  in  time  of  peace 
no  jurisdiction  may  be  exercised  over  vessels  of  foreign  states 

the  arbitration  see  Moore’s  Digest,  i ;gi3-g22.  As  a result  of  the 
arbitration  the  United  States  paid  Great  Britain  $473,151.26  as  indemnity 
for  the  seizures.  Judicial  discussions  subsequent  to  the  arbitration : see 
The  Alexander,  75  Fed.  Rep.  519,  Pacific  Trading  Co.,  vs.  U.  S.,  75  Fed  Rep. 
519;  La  Ninfa,  75  Fed.  Rep.  513,  reversing  49  Fed,  Rep.  575;  Whitelaw  vs. 
U.  S.  75  Fed.  Rep.  513.  The  Behring  Sea  controversy  is  discussed  at 
length  in  Moore’s  Digest,  i ;890-929,  and  Freeman  Snow,  Treaties  and 
Topics  in  American  Diplomacy,  Boston,  1894,  PP-  471-509- 

siFoster  vs.  Neilson,  2 Pet.  253;  Garcia  vs.  Lee,  12  Pet,  511;  U.  S. 
vs.  Reynes,  9 How.  127;  Williams  vs.  Suffolk  Ins.  Co.,  13  Pet.  415;  In 
re  Cooper,  143  U.  S.  472,  502-505,  (1892)  ; Jones  vs.  U.  S.  137  U.  S.  202, 
212,  (1890)  ; U.  S.  vs.  Texas,  143  U.  S.  621,  629,  (1892).  See  British 
case  Regina  vs.  Keyn  L.  R.  2 Ex.  D.  63,  (1876)  Scott  154,  in  which 
criminal  jurisdiction  on  vessels  within  three  mile  limit  was  refused  in 
the  absence  of  specific  authorization  by  the  political  dept,  of  govt.  Soon 
after  this  decision,  the  Territorial  Water  Jurisdiction,  Act.  1878,  41-2 
Viet.  c.  73  gave  such  jurisdiction.  In  Mortensen  vs.  Peters,  14  Scot. 
L.  T.  R.  227  (1906),  Bentwich  cases,  12,  the  court  held  that  it  was  bound  to 
accept  the  jurisdiction  given  it  by  statute  over  offenses  committed  beyond 
the  three  mile  limit  by  foreign  vessels. 


34 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[34 


on  the  high  seas.  The  law  of  the  United  States  does,  however, 
provide  for  the  assumption  of  jurisdiction  over  pirate  vessels, 
slave  traders,  and  national  vessels  upon  the  high  seas. 

(a)  Jurisdiction  over  pirates  was  given  by  the  crimes  act 
of  1790’“  enacted  under  the  constitutional  authority  of  congress 
to  “define  and  punish  piracies  and  offences  against  the  law  of 
nations.”  Besides  persons  “piratically  running  away”  with 
vessels  or  goods  worth  over  fifty  dollars  on  the  high  seas,  the 
act  declared  all  persons  guilty  of  acts  punishable  by  death  if 
committed  in  the  United  States,  or  of  other  specified  offenses, 
pirates,  and  punishable  by  death.  The  courts  distinguished  two 
classes  of  offenses  in  this  act:  (1)  piracy  by  international  law 
and  (2)  piracy  by  national  law.  It  was  only  for  the  former 
offense  that  the  courts  could  assume  jurisdiction  of  acts  com- 
mitted on  foreign  vessels.^^  In  the  latter  class  of  offenses,  juris- 
diction was  only  assumed  where  the  offense  was  committed  on 
a United  States  vessel  or  by  a United  States  citizen.^'^ 

An  act  of  1819®®  amended  this  act,  so  as  to  make  “piracy 
as  defined  by  the  law  of  nations”  punishable  by  death,  and 
piratical  vessels  subject  to  forfeiture.  The  act  was  practically 
repeated  in  1820,®®  and  appears  in  the  revised  statutes  as  section 
5368.  It  was  repeated  in  the  penal  code  of  1911,  the  death 
penalty  having  been  changed  to  life  imprisonment  by  an  act  of 
1897.®^  The  definition  of  piracy  dependent  upon  the  meaning 
of  that  term  by  the  law  of  nations  was  held  sufficiently  definite 
to  give  criminal  jurisdiction.®® 

Persons  holding  commissions  from  recognized  belligerents, 
even  though  not  recognized  as  independent  states,  can  not  be 
considered  pirates®®  and,  although  opinions  have  differed,  the 
weight  of  authority  holds  that  the  vessels  of  unrecognized  insur- 

^“Act.  Apr.  3,  1790,  I stat.  113. 

^^U.  S.  vs.  Klintock,  5 Wheat.  144,  (1820)  ; U.  S.  vs.  Pirates,  5 
Wheat.  184. 

S.  vs.  Palmer,  3 Wheat.  610,  (1818)  ; U.  S.  vs.  Holmes,  5 Wheat. 
412,  (1820). 

^^Act.  Mch.  3,  1819,  3 stat.  513. 

^®May  15,  1820.  3 stat.  600;  Rev.  Stat.  5368. 

Penal  Code  1911,  sec.  290,  Act.  Jan.  15,  1897,  29  Stat.  487. 

^®U.  S.  vs.  Smith,  5 Wheat.  153,  (1820). 

^^The  Nuestra  Senora  de  la  Caridad,  4 Wheat.  497;  The  Santissima 
Trinidad,  7 Wheat.  283;  The  Estrella,  4 Wheat.  298;  Ford  vs.  Surget, 
97  U.  S.  618;  U.  S.  vs.  Baker,  5 Blatch,  11,13. 


35] 


IN  TIME  OF  PEACE 


35 


gents  may  not  be  treated  as  pirates.®®  Foreign  vessels  have  been 
held  forfeitable  for  piratical  aggressions  though  the  voyage  was 
not  primarily  one  of  piracy,®^  and  seizure  of  innocent  vessels 
on  probable  suspicion  of  piracy  exempts  the  captor  from  liability 
for  damages.®- 

Property  seized  by  pirates  has  been  restored  on  payment 
of  salvage  in  the  same  manner,  as  in  the  case  of  the  recapture 
of  prizes  during  war,  though  there  is  no  limit  to  the  time  during 
which  restoration  is  possible,  as  seizure  by  pirates  never  divests 
the  original  owner  of  his  title.®^  A number  of  treaties  have 
required  such  restoration.^® 

Treaties  have  provided  that  American  citizens  accepting 
commissions  against  the  other  contracting  part}^  should  be 
treated  as  pirates.  There  has  been  doubt  whether  such  treaty 
provisions  are  valid  because  of  the  impliedly  exclusive  power 
given  by  the  constitution  to  congress  to  ^‘define  piracies.”®^ 
There  have  been  no  criminal  prosecutions  under  such  treaties. 
The  act  is  not  one  of  piracy  by  international  law  and  therefore 
could  apply  only  to  United  States  citizens. 

(b)  Slave  trading  by  United  States  citizens  was  made  a 
crime  by  an  act  of  1807,®®  and  denounced  as  piracy  by  a statute 
of  1820  ;®^  in  this  case,  however,  the  crime  was  not  one  of  piracy 
by  international  law.  In  the  early  half  of  the  nineteenth 
century,  the  United  States  strenuously  opposed  Great  Britain’s 
claims  to  visit  and  search  foreign  vessels  suspected  of  slave  trad- 
ing, and  to  punish  them  as  pirates.  The  practice  was  continued 
during  the  Napoleonic  wars,®*  but  Lord  Stowell  by  a decision 

60The  Three  Friends,  i66  U.  S.  i,  63,  (1897),  U.  S.  vs.  the  Itata,  56 
Fed.  Rep.  505;  U.  S.  vs.  The  Weed,  5 Wall.  62;  The  Watchful,  6 Wall. 
91.  Contra  see  The  Ambrose  Light,  25  Fed.  Rep.  408,  (1885),  Navy- 
Regulations,  1885,  ch.  20,  par.  18.  See  Moore’s  Digest,  211097. 

®^U.  S.  vs.  The  Malek  Adhel,  2 How.  210, 

6“The  Marianna  Flora,  ii  Wheat,  i;  The  Palmyra,  12  Wheat,  i. 

®-^Wirt,  Att.  Gen.,  i op.  584,  (1822). 

®^See  Treaty  with  Spain,  1795,  art.  9,  p.  1643;  U.  S.  vs.  The  Amistad, 
15  Pet.  518. 

^•'’The  Bello  Corrunes,  6 Wheat.  152;  Letter  by  Sec.  of  State  Marcy, 
referring  to  a proposed  treaty  with  Venezuela  of  this  character,  Moore’s 
Digest,  2;  978. 

®^Act.  Mch.  2,  1807,  2 stat,  420,  sec.  7. 

®’'Act  May  15,  1820,  3 stat.  600,  Rev.  stat.  5375. 

®®The  Amedie,  i Act.  240,  (1810)  ; The  Fortuna,  i Dods.  81,  (1811)  ; 
The  Diana,  i Dods.  95,  (1813).  The  view  was  held  in  these  cases  that 
foreign  vessels  seized  during  war  would  not  be  restored  if  engaged  in 
slave  trading. 


36  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [36 

in  1817^®  refused  to  recognize  these  claims  as  valid  in  time  of 
peace,  and  his  view  was  followed  by  Chief  Justice  Marshall  in 
1825;^°  consequently  the  ‘‘pirates”  from  slave  trading  were 
only  subject  to  United  States  jurisdiction  when  in  domestic  ves- 
sels. 

The  treaty  of  Ghent  with  Great  Britain  in  1814^^  expressed 
the  hope  that  both  countries  would  endeavor  to  suppress  the 
slave  trade,  and  in  the  Webster- Ashburton  treaty  of  1842^ ^ the 
United  States  agreed  to  maintain  a squadron  on  the  West 
African  cost  to  act  in  cooperation  with  a like  English  squadron, 
each  of  them,  however,  to  seize  only  vessels  flying  its  own  flag. 

Great  Britain  definitely  renounced  her  claim  to  visit  and 
search  foreign  suspected  vessels  in  1858,  and  at  the  same  time 
the  United  States  senate  by  a resolution  denounced  the  “visit, 
molestation,  and  detention”  of  United  States  vessels  by  force  by 
foreign  powers  “ as  a derogation  of  the  sovereignty  of  the  United 
States.  A treaty  with  Great  Britain  of  1862^^  provided  for 
the  mutual  patrol  of  a conventional  zone  extending  two  hundred 
miles  from  the  African  coast,  and  the  seizure  of  slave  traders,  to 
be  tried  in  three  mixed  courts  at  Sierre  Leone,  Cape  of  Good 
Hope,  and  New  York.  In  1870^^  the  mixed  courts  were  abolished 
by  treaty,  the  same  provisions  applying  to  national  courts  of 
the  two  countries.  By  the  general  act  for  the  repression  of 
African  Slave  Trade^®  of  1890,  which  is  a treaty  ratified  by 
the  United  States  and  sixteen  other  powers,  the  visit,  search 
and  seizure  of  vessels  of  signatory  powers  under  five  hundred 
tons  burden,  by  war  vessels  of  any  of  the  signatory  powers,  are 
permitted  in  a prescribed  zone  about  Africa.  Suspected  vessels 
are  to  be  sequestrated  and  their  ofiicers  and  crew  turned  over  to 
the  country  under  whose  flag  they  sailed.  Slave  trading  by  this 
convention  has  been  put  on  a footing  resembling  that  of  piracy, 
though  not  exactly  the  same.  Visit  and  search  may  only  be 
exercised  against  foreign  vessels  in  the  limited  zone,  and  trial 
is  always  by  the  country  of  the  suspected  parties. 

69Le  Louis,  2 Dods.  210,  (1817). 

■^oThe  Antelope,  10  Wheat.  66,  (1825). 

■^^Treaty  with  Great  Britain,  1814,  art.  10,  Malloy,  p.  618. 

■^-Treaty  with  Great  Britain,  1842,  art.  8,  Malloy,  p.  655. 

73Moore's  Digest,  21946. 

’^^Treaty  with  Great  Britain,  1862,  Malloy,  p.  674. 

^^Treaty  with  Great  Britain,  1870,  Malloy,  p.  693. 

"^General  Act  for  the  Repression  of  African  Slave  Trade,  1890,  Mal- 
loy, p.  1964. 

’^'^On  the  Slave  Trade  see  Moore’s  Digest,  2;9i4-95i. 


37] 


IN  TIME  OF  PEACE 


37 


(c)  Jurisdiction  over  civil  cases  involving  merchant  vessels 
on  the  high  seas  is  inherent  in  the  admiralty  jurisdiction  given 
to  federal  courts  by  the  constitution  and  by  the  judiciary  act 
of  1789.  Cognizance  of  crimes  committed  on  board  national 
vessels  is  not,  however,  inherent  in  the  admiralty  jurisdiction,^^ 
but,  by  statute,  courts  of  admiralty  are  given  jurisdiction  over 
offenses  on  United  States  vessels  at  sea,  even  when  committed 
by  foreigners.'^®  The  acts  specified  as  piracy  by  national  law 
come  under  this  head.  The  criminal  jurisdiction  over  vessels  is 
not  co-extensive  with  the  civil  admiralty  jurisdiction.  The  latter 
has  been  held  to  extend  over  the  high  seas  to  tide  water  mark 
and  in  rivers  so  far  as  the  ebb  and  flow  of  the  tide,  in  the  United 
States  having  been  extended  over  the  Great  Lakes  and  all  navi- 
gable streams.*®  The  criminal  jurisdiction,  however,  extends 
only  over  United  States  vessels  on  the  high  seas  beyond  terri- 
torial limits.  Crimes  on  board  vessels  within  territorial  waters 
of  the  United  States*^  or  foreign  countries*-  are  not  within  the 
statutory  grant  of  jurisdiction  to  courts  of  admiralty  jurisdic- 
tion, but  are  within  the  cognizance  of  the  state  or  foreign 
country  where  committed.  Statutes  have  given  consular  courts 
jurisdiction  over  crimes  committed  by  seamen  upon  United 
States  vessels.**  The  jurisdiction  extends  where  the  vessel  is 
in  the  port  of  the  country  where  the  court  is  located.** 

The  national  jurisdiction  over  public  vessels  is  complete, 
and  exists  even  when  the  vessel  is  within  foreign  territorial 
waters.  This  jurisdiction  is  exercised  through  the  courts  martial 

^8U.  S.  vs.  Bevans,  3 Wheat.  366;  U.  S.  Wiltberger,  5 Wheat.  76, 
(1820)  ; U.  S.  vs.  Holmes,  5 Wheat.  412,  (1820). 

■^^Act.  Apr.  30,  1790,  I stat.  113;  Rev.  stat.  5346,  5576,  Penal  Code, 
1911,  sec.  272.  The  jurisdiction  extends  also  to  offenses  committed  on 
Guano  Islands.  Trial  is  held  in  the  district  court  of  the  district  where  the 
offender  is  found  or  into  which  he  is  first  brought,  (Rev.  stat.  730). 

®oThe  Genessee  Chief,  12  How.  443;  The  Hine  vs.  Trevor,  4 Wheat. 
555>  (1866)  ; The  Moses  Taylor,  4 Wall.  44,  (1866)  ; Packer  vs.  Bird,  137 
U.  S.  661,  (1891). 

®iU.  S.  vs.  Bevans,  3 Wheat.  336. 

®-U.  S.  vs.  Wiltberger,  5 Wheat.  74,  (1820),  U.  S.  vs.  McGill,  4 Dali. 
426,  (1806).  U.  S.  vs.  Rodgers,  150  U.  S.  249,  (1893),  seems  to  be  contra. 
In  Reg.  vs.  Anderson,  ii  Cox  C.  C.  198,  (1868),  a British  case,  the  court 
took  jurisdiction  of  a crime  by  a United  States  citizen  on  a British  vessel 
forty-five  miles  up  the  Garonne  of  France.  Moore’s  Digest,  21937.  See 
infra  p.  42. 

®^Rev.  Stat.  4084,  4088. 

s^In  re  Ross,  140  U.  S.  453,  (1891). 


38 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[38 


and  executive  authority.  In  the  case  of  public  vessels  not  of  the 
navy,  the  laws  giving  courts  of  admiralty  jurisdiction  of  crimes 
appear  to  apply  as  in  the  case  of  merchant  vessels. 

(3)  The  United  States  has  in  general  recognized  its  duty 
to  abstain  from  the  assumption  of  jurisdiction  over  acts  com- 
mitted in  foreign  countries,  but  certain  exceptions  to  this  general 
rule  have  been  recognized  by  law.  For  convenience  we  may 
consider  the  subject  under  the  four  heads,  (a)  acts  committed 
by  agencies  of  government,  (b)  by  citizens,  (c)  by  foreigners, 
and  (d)  laws  of  extraterritorial  effect. 

(a)  The  general  exemption  of  foreign  public  vessels,  armed 
forces,  and  diplomatic  representatives  from  local  jurisdiction  is 
recognized  by  international  law.  The  law  of  the  United  States 
provides  for  the  exercise  of  jurisdiction  over  acts  by  its  agencies 
nf  this  character  even  in  foreign  countries.  Naval  forces  of  the 
United  States  in  foreign  jurisdiction  continue  subject  to  the 
articles  for  the  government  of  the  navy,  navy  regulations  and 
naval  instructions.®^  Crimes  committed  on  board  such  vessels 
in  foreign  ports  are  subject  to  trial  by  court  martial  in  the 
same  manner  as  if  the  vessel  were  on  the  high  seas  or  in  a home 
port.  Seamen  of  the  navy  are  also  subject  to  consular  jurisdic- 
tion for  acts  committed  abroad.®® 

Armed  forces  may  only  enter  foreign  territory  in  time  of 
peace  by  special  license,®^  but  wherever  they  are  they  remain 
subject  to  the  articles  of  war,  the  army  regulations,  and  the 
general  orders  of  the  war  department.®®  As  with  naval  forces, 
crimes  committed  by  members  of  such  forces  in  foreign  territory 
are  subject  to  court  martial  trial.  Military  law  is  personal,  and 
non-territorial  in  effect. 

The  exemption  from  local  jurisdiction  of  diplomatic  repre- 
sentatives is  recognized  by  international  law  and  specified  in  the 
instructions  to  diplomatic  officers  issued  by  the  president  in 
1897.®®  By  these  instructions  diplomatic  officers  are  forbidden 

®5See  Navy  Regulations,  1913;  Articles  for  the  government  of  the 
Navy,  Rev.  Stat.  1624. 

®®ConsuIar  Regulations,  1896,  Sec.  630,  p.  268.  Moore’s  Digest,  2;  611. 
See  Navy  Regulation  Nov.  2,  1875. 

®'^See  Dig.  op.  Judge  Ad.  Gen.  1912,  p.  90. 

®8See  Articles  of  War,  Rev.  Stat.  1342-1343;  Dig.  op.  Judge  Ad.  Gen. 
1912,  pp.  511,  1071. 

^^Instructions  to  Diplomatic  Officers  of  the  United  States,  (1897), 
Sec.  46,  p.  18;  Rev.  Stat.  4063-4064. 


39] 


IN  TIME  OF  PEACE 


39 


to  submit  to  local  criminal  or  civil  jurisdiction,  or  to  testify  in 
foreign  courts  without  the  express  consent  of  the  United  States.®® 
They  remain  subject  to  the  instructions  of  the  department  of 
state  and  the  president,  by  whom  they  may  be  recalled  at  pleas- 
ure,®^ and  to  the  law  of  the  United  States. 

Consuls  do  not  enjoy  the  exemptions  of  diplomatic  officers 
from  local  jurisdiction  except  in  non-Christian  countries.  They 
are,  however,  declared  by  the  consular  regulations  of  1896  to 
be  exempt  from  jury  and  militia  duties,  and  their  archives  are 
not  subject  to  local  jurisdiction.®-  Consuls  abroad  are  subject 
to  consular  regulations  and  the  authority  of  the  department  of 
state  and  the  president.  They  may  be  punished  in  the  United 
States  for  crimes  committed  abroad.®^  The  consular  regulations 
declare  United  States  consular  officers  to  be  immune  from  local 
criminal  and  civil  jurisdiction,  and  subject  to  diplomatic  priv- 
ileges in  non-Christian  countries.®^  In  such  cases  their  acts  are 
subject  to  the  jurisdiction  of  United  States  courts  as  in  the  case 
of  ministers. 

(b)  Acts  committed  by  United  States  citizens  abroad  are 
not  in  general  subject  to  the  jurisdiction  of  United  States  law. 
This  applies  to  acts  committed  on  national  merchant  vessels  in 
foreign  ports.  Thus  the  United  States  courts  have  held  that 
statutes  conferring  jurisdiction  over  crimes  committed  within 
the  admiralty  jurisdiction  of  the  United  States  do  not  apply  to 
crimes  committed  on  vessels  in  foreign  ports.®®  Crimes  take 
place  where  they  take  effect,  consequently  the  court  refused 
jurisdicTion  in  a case  where  an  American  citizen  fired  a shot 
from  an  American  vessel,  killing  a man  in  foreign  jurisdiction.®® 

There  are,  however,  exceptions  to  this  rule.  Statutes  have 
provided  for  the  punishment  of  crimes  against  the  sovereignity 
of  the  United  States,  committed  by  citizens  abroad,  such  as  the 
unauthorized  carrying  on  of  diplomatic  correspondence  with 
foreign  governments.®^  Another  exception  occurs  in  the  case 
of  countries  where  consular  jurisdiction  has  been  established 

®oDiplomatic  Instructions,  1897,  Sec.  46,  48,  53,  56. 

^^Diplomatic  Instructions,  1897,  Sec.  272-280,  Rev.  Stat.  202. 

^^Consular  Regulations,  1896,  Sec.  71-75. 

^^Moore’s  Digest,  2;267. 

^^Consular  Regulations,  1896,  Sec.  75. 

^^U.  S.  vs.  Wiltberger,  5 Wheat.  74,  (1820)  ; U.  S.  vs.  McGill,  4 Dali. 
426,  (1806)  ; contra,  U.  S.  vs.  Rodgers,  150  U.  S.  249,  (1893). 

®®U.  S.  vs.  Davis,  2 Sumner  C.  C.  482,  (1837). 

Q^Act.  1799,  Rev.  Stat.  5335.  See  Moore’s  Digest,  2:264. 


40 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[40 


by  treaty.  Such  treaties  have  been  concluded  with  most  non- 
Christian  countries,  although  that  with  Japan  was  abrogated  in 
1894,  as  have  been  those  of  countries  which  have  since  become 
colonies  of  European  states.®®  The  treaties  usually  specify  the 
limits  of  this  jurisdiction,  which  has  been  further  defined  by  act 
of  congress.®®  According  to  this  statute  such  consuls  have  juris- 
diction over  crimes  committed  by  United  States  citizens  in  that 
country,  or  by  sailors  in  United  States  vessels,  even  when  the 
man  is  a foreigner.^®®  A similar  jurisdiction  is  given  to  consuls 
and  commercial  agents  in  places  ‘ ‘ not  inhabited  by  any  civilized 
people  or  recognized  by  any  treaty  with  the  United  States.  ”^®^ 
Besides  this  criminal  jurisdiction  consular  courts  exercise  civil 
jurisdiction  in  cases  where  American  citizens  are  defendants.^®^ 
(c)  The  United  States  has  of  all  countries  been  the  most 
consistent  in  its  opposition  to  the  doctrine  of  extraterritorial 
jurisdiction  over  foreigners.^®®  As  has  been  observed,  the  juris- 
diction over  citizens  for  acts  committed  abroad,  a jurisdiction 
which  is  permissible  by  international  law  and  extensively  exer- 
cised by  many  countries,  has  been  but  sparingly  provided  for 
in  the  law  of  the  United  States.  In  an  exhaustive  discussion  of 

^®Treaties  now  in  force  with  Borneo,  China,  Korea,  Morocco,  Tripoli, 
Turkey,  Persia,  Siam,  Tonga.  Treaties  have  been  concluded  but  since 
abrogated  or  superseded  by  annexation  with  Algiers,  Muscat,  Zanzibar, 
Japan,  Madagascar,  Samoa,  Tunis. 

^^Act  Aug.  II,  1848,  9 Stat.  276,  as  amended  in  Rev.  Stat.  Sec.  4083- 
4130.  Applies  to  China,  Japan,  Siam,  Egypt,  Madagascar,  Turkey,  Persia, 
Tripoli,  Tunis,  Morocco,  Muscat,  Samoa,  and  other  countries  with  which 
appropriate  treaties  may  be  concluded.  Rev.  Stat.  4129.  Japan,  Mada- 
gascar, Tunis,  Muscat,  and  Samoa  have  since  been  excluded  by  treaty. 

lo^Consular  regulations,  1896,  Sec.  629.  In  re  Ross,  140  U.  S.  453, 
(1891). 

loiRev.  Stat.  Sec.  4088.  This  was  held  to  permit  the  assumption  of 
jurisdiction  by  a special  agent  sent  over  for  that  purpose  in  a country 
where  no  regular  consul  or  commercial  agent  resided,  by  Att.  Gen.  Gar- 
land. (18  op.  219,  1885). 

exercising  jurisdiction  consular  courts  apply  the  law  of  the 
United  States,  the  common  law,  the  law  of  equity  and  admiralty,  and 
“decrees  and  regulations”  which  ministers  may  make  to  “supply  defects 
and  deficiencies”  in  the  other  bodies  of  law  mentioned.  Rev.  Stat.  4986; 
Cushing  Att.  Gen.,  7 op.  503;  Moore’s  Digest,  2;6i4-6i7. 

lo^See  the  Appollon,  9 Wheat.  362;  U.  S.  vs.  Davis,  2 Sumner  C.  C* 
482,  (1837). 


41] 


IN  TIME  OF  PEACE 


41 


extraterritorial  crime/®^  written  by  John  Bassett  Moore  in  con- 
nection with  the  Cutting  case,  in  which  Mexico  attempted  to 
assert  jurisdiction  over  an  American  citizen  for  acts  committed 
against  a Mexican  citizen  in  the  United  States,  only  one  instance 
is  mentioned  in  which,  aside  from  treaty  agreements,  jurisdic- 
tion is  asserted  over  foreigners  for  acts  in  foreign  territory. 
This  case  occurs  in  a statute  of  1856^®®  which  authorizes  consular 
officers  and  secretaries  of  legation  to  administer  oaths  and  per- 
form notarial  acts,  which  shall  be  valid  in  the  United  States. 
The  act  also  provides  that  persons  committing  perjury  in  such 
oaths  shall  be  liable  to  criminal  punishment  as  if  the  act  Avere 
committed  in  the  United  States,  and  may  be  indicted  in  any 
district  where  arrested.  This  statute  was  justified  by  Attorney 
General  Williams^®®  on  the  ground  that  the  domicile  of  the 
consul  or  diplomatic  agent  where  the  act  was  committed  is  to 
be  regarded  as  a portion  of  United  States  territory.  Moore 
thinks  a more  satisfactory  justification  can  be  found  in  the 
implied  consent  given  by  the  foreign  government,  to  submit  its 
citizen  to  United  States  law,  when  he  does  these  acts  before 
an  officer  recognized  by  international  law  and  by  the  foreign 
state’s  own  law  as  competent  to  perform  such  functions.^®^ 
To  this  example  may  be  added  that  already  mentioned  of 
the  jurisdiction  exercised  by  consular  courts  over  seamen  of 
foreign  nationality  serving  on  American  vessels  in  foreign  ports. 
The  consular  regulations  very  specifically  extend  this  jurisdic- 
tion, and  in  the  case  of  In  re  Ross^®®  its  exercise  was  upheld  by 
the  United  States  supreme  court  in  the  case  of  a British  subject, 
serving  on  an  American  vessel  and  found  guilty  of  murder  by 
the  consular  court  for  an  act  done  on  the  vessel  while  in  the 
harbor  of  Yokahama.  The  usual  principle  of  jurisdiction  over 
acts  done  on  national  vessels  coupled  with  the  extraterritorial 
jurisdiction  over  such  vessels,  granted  to  consuls  by  treaty  in 
this  case,  furnishes  sufficient  justification  for  this  exercise  of 
jurisdiction  over  aliens  for  acts  committed  abroad. 

B-  Moore,  Report  on  extraterritorial  Crime,  For.  Rel.,  1887, 
p.  770.  A large  portion  of  this  report  is  printed  in  Moore’s  Digest, 
2;243-26g. 

losAct.  Aug.  18,  1856;  Rev.  Stat.  1750. 

loewilliams  Att.  Gen.,  14  op.  285. 

lo^Moore’s  Digest,  21267. 

i®®See  Consular  regulations,  1896,  sec.  629;  In  re  Ross,  140  U.  S. 
453,  (1891). 


42  INTERNATIONAL  Lx\W  AND  MUNICIPAL  LAW  [42 

Not  SO  easily  justified  is  the  jurisdiction  given  by  statute 
over  every  person  committing  assaults  with  a dangerous  weapon 
on  vessels  wholly  or  partly  owned  by  United  States  citizens,  on 
the  ‘‘high  seas,  or  in  any  arm  of  the  sea,  or  in  any  river,  haven, 
creek,  basin,  or  bay,  within  the  admiralty  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular 
state”.  Under  this  statute  jurisdiction  was  upheld  of  a crime 
committed  on  an  American  vessel  in  the  Detroit  River  within 
the  territorial  limits  of  Canada,  thus  limiting  the  term  “par- 
ticular state  ’ ’ to  states  of  the  union.^®® 

In  general,  however,  the  law  of  the  United  States  gives 
adequate  recognition  to  the  duty  of  abstaining  from  the  exercise 
of  jurisdiction  over  extraterritorial  crime  by  aliens. 

(d)  United  States  courts  have  in  general  refused  to  give 
an  extraterritorial  effect  to  laws,  even  when  no  limitation  was 
expressed  in  terms.  Thus  the  supreme  court  refused  to  apply 
the  Sherman  anti-trust  law  to  prevent  a monopoly  in  Costa 
Rica.  Justice  Holmes  speaking  for  the  court,  said,  “All  legisla- 
tion is  prima  facie  territorial,  words  having  universal  scope, 
such  as  every  contract  in  restraint  of  trade,  * * will  be 

taken  as  a matter  of  course  to  mean  only  every  one  subject  to 
such  legislation,  not  all  that  the  legislator  may  subsequently 
be  able  to  catch. 

In  1908  Judge  Advocate  General  Davis  expressed  an  opinion 
that  declarations  of  war  were  laws  of  extraterritorial  effect.^ 
Consequently  the  president  could  call  out  the  militia  for  service 
in  foreign  countries,  under  the  constitutional  and  statutory 
authority  to  call  them  out  “to  execute  the  laws.”  A statute 
of  1908^^^  based  on  this  opinion  recognized  such  extraterritorial 
laws,  but  the  validity  of  this  provision  was  denied  in  an  opinion 
of  the  attorney  general  in  1912.^^^ 

io9Rev,  Stat.  5346.  See  U.  S.  vs.  Rodgers,  150  U.  S.  249,  (1893). 
In  U.  S.  vs.  Wiltberger,  5 Wheat  76,  the  court  refused  jurisdiction  of 
a crime  by  an  American  citizen  in  an  American  vessel  in  the  river  Tigress 
of  China.  The  statute  under  which  indictment  was  made  in  this  case  was, 
however,  sec.  12,  of  the  crimes  act  of  1790,  (see  Rev.  Stat.  5576)  which 
extended  jurisdiction  only  over  the  high  seas.  See  also,  Thomas  vs. 
Lane,  2 Sumn.  i,  U.  S.  vs.  Coombs,  12  Pet.  72;  Moore’s  Digest,  1:937-938. 

MidAmerican  Banana  Co.  vs.  United  Fruit  Co.,  213  U.  S.  347,  (1909). 

MMiSee  Cong.  Record,  60th  Cong.,  ist  Sess.,  1908,  vol.  42,  p.  6940,  6661; 
63rd  Cong.,  2nd  Sess.,  p.  7778. 

ii^Act  May  27,  1908,  35  Stat.  399,  Sec.  5 p.  400. 

ii^Att.  Gen.  Wickersham,  29  Op.  322,  (1912).  But  see  Act.  Feb.  16, 
1914,  Sec.  4,  in  which  the  power  to  summon  the  naval  militia  for  service 
“within  or  without”  the  territorial  jurisdiction  of  the  United  States  is  given. 


43] 


IN  TIME  OP  PEACE 


43 


Though  this  view  applies  to  ordinary  laws,  there  are 
undoubtedly  laws  of  extraterritorial  effect.  Such,  for  instance, 
are  the  articles  of  war,  the  articles  for  the  government  of  the 
navy,  and  official  instructions  to  army,  navy,  consular  and 
diplomatic  officers.  These  are  laws  of  non-territorial  character, 
applying  to  particular  persons  wherever  they  may  happen  to  be. 
Such  laws,  however,  have  been  applied  only  to  citizens  of  the 
United  States,  with  the  minor  exceptions  mentioned  in  the  last 
section,  and  consequently  are  not  inconsistent  with  the  obliga- 
tion to  abstain  from  extending  laws,  or  assuming  jurisdiction 
over  aliens  abroad. 

(4)  The  courts  have  affirmed  on  numerous  occasions  that 
they  can  not  assume  jurisdiction  over  suits  against  foreign 
states,  or  sovereigns,  or  their  official  representatives,  such  as 
ministers  and  ambassadors.^^^  The  commonwealths  of  the  union 
have  also  been  considered  sovereign  in  this  respect,  and  no 
suits  against  them  entertained  unless  jurisdiction  has  been 
specifically  granted  by  the  constitution.^^®  The  government  of 
the  United  States  is  itself  in  this  class  and  can  not  be  sued  unless 
specific  provision  is  found  in  statute.^^® 

The  courts  have,  however,  held  that  a nominal  suit  to  dis- 
cover facts  may  be  within  their  jurisdiction.^^^  They  may  also 
assume  jurisdiction  of  suits  brought  by  sovereigns.  As  in  such 
suits  the  sovereign  has  voluntarily  submitted  to  their  jurisdic- 
tion, setoffs  may  be  allowed  against  him  to  the  amount  of  his 
claim,  but  no  more.^^®  The  whole  proceeding  can  never  result 
in  an  actual  judgment  against  a sovereign. 

ii^Underhill  v‘s.  Hernandez,  i68  U.  S.  250;  Hassard  vs.  United  States 
of  Mexico,  173  N.  Y.  645,  61  N.  Y.  S.  939;  Res  Publica  vs.  De  Long- 
champs,  I Dali.  Ill,  1 16,  (Pa.)  ; Hatch  vs.  Baez,  7 Hun.  596,  (N.  Y.  1876)  ; 
Schooner  Exchange  vs.  McFaddon,  7 Cranch  137. 

iispeople  vs.  Dennison,  84  N.  Y.  272;  Beers  vs.  Arkansas,  201  How. 
527.  The  immunity  of  states  from  jurisdiction  in  federal  courts  in  cases 
covered  by  the  constitution  was  denied  in  Chisholm  vs.  Ga.,  2 Dali.  419, 
(i793)j  as  a result  of  which  the  immunity  was  specifically  granted  from 
suits  by  subjects  of  another  state  or  a foreign  state,  in  the  eleventh 
amendment. 

ii®Stanley  vs.  Schwalby,  162  U.  S.  255 ; Kawananako  vs.  Polyblank, 
205  U.  S.  349,  353. 

ii'^Manning  vs.  Nicaragua,  14  How.  Prac.  517,  (N.  Y.  1857). 

ii®People  vs.  Dennison,  84  N.  Y.  272;  King  of  Spain  vs.  Oliver,  Fed. 
Cas.  7813;  U.  S.  vs.  Eckford,  6 Wall.  490;  The  Siren  7 Wall.  152.  See 
also  Von  Hellfeld  vs.  Russian  Govt,  a German  Case,  Am.  J.  Int.  Law, 
1911,  5;  490. 


44 


INTERNATIONAL  LAW  AND  MUNICIPxVL  hAW 


[44 


In  a number  of  these  eases  the  courts  have  specifically 
invoked  the  principle  that  courts  apply  international  law,  and 
have  found  the  non-liability  of  sovereigns  to  suit  among  its 
rulesd^®  In  other  cases,  the  fact  that  jurisdiction  implies  power 
to  enforce,  a condition  impossible  as  against  sovereigns,  was 
considered  sufficient  to  warrant  a refusal  of  judgment In 
cases  where  the  plaintiff  sought  relief  for  infractions  of  right 
by  his  own  sovereign,  the  principle  that  the  power  which  may 
alter  the  law  can  never  be  bound  by  it  was  held  to  render  such  a 
jurisdiction  out  of  the  question.  Thus  in  Kawananako  vs.  Poly- 
blank,^-^  Justice  Holmes,  speaking  for  the  court,  said,  “A 
sovereign  is  exempt  from  suit,  not  because  of  any  formal  concep- 
tion or  obsolete  theory,  but  on  the  logical  and  practical  ground 
that  there  can  be  no  legal  right  as  against  the  authority  that 
makes  the  law  on  which  the  right  depends.’’ 

The  duties  of  abstention  are  in  the  main  of  a political 
nature,  and  beyond  the  power  of  municipal  law  to  control. 
There  have,  however,  been  treaties  and  statutes  defining  methods 
of  acquiring  territory,  the  limits  of  the  use  of  force  against 
foreign  countries,  and  the  extent  of  the  national  jurisdiction. 
The  courts  also,  although  generally  holding  such  questions 
political,  and  following  the  political  department  of  government 
in  any  determination  it  may  give  regarding  the  international 
duties  of  abstention,  have  laid  down  rules,  especially  on  the 
question  of  jurisdiction.  As  in  laying  down  these  principles 
upon  which  they  and  other  public  officers  will  act,  they  find 
the  rules  in  the  law  of  nations,  and  apply  them  according  to 
the  principle  that  courts  of  the  United  States  apply  interna- 
tional law  in  appropriate  cases,  judgemade  law  furnishes  an 
effective  municipal  sanction  to  the  fulfillment  of  the  state’s 
duties  of  abstention. 

ii^Hatch  vs.  Baez,  7 Hun.  596,  (N.  Y.  1876)  ; Res  Publica  vs.  De 
Longchamps,  i Dali,  iii,  116. 

120 American  Banana  Co.  vs.  United  Fruit  Co.,  213  U.  S.  347,  (1909). 

i2iKawananako  vs.  Polyblank,  205  U.  S.  349,  353. 


CHAPTER  III.  OBLIGATIONS  OF  ACQUIESCENCE 


INTRODUCTORY 

As  a state  is  in  general  bound  to  abstain  from  the  exercise  of 
sovereignty  outside  of  its  territory,  so  in  general  it  may  resent 
any  obstructions  to  the  free  exercise  of  its  sovereign  rights  within 
its  territory.  As  has  been  noted  there  are  exceptions  to  the  gen- 
eral rule  of  abstention  from  the  exercise  of  extraterritorial  sover- 
eignty. In  like  manner  there  are  exceptions  to  the  rule  of  com- 
plete internal  authority.  International  law  specifies  cases  in 
which  sovereign  rights  may  not  be  exercised  even  within  the  ter- 
ritory, and  thereby  imposes  a duty  to  acquiesce  in  these  exemp- 
tions. There  is,  however,  great  difference  of  opinion  as  to  what 
these  exemptions  are. 

It  seems  that  in  common  law  countries  the  principle  of  ab- 
solute territorial  sovereignty  is  adhered  to  in  theory  with  great 
emphasis,  but  in  practice  numerous  concessions  are  made.^  In 
Roman  law  countries,  on  the  other  hand,  many  limitations  of 
strict  territorial  sovereignty  are  recognized  as  law,  but  in  prac- 
tice few  more  concessions  are  allowed  than  under  the  common 
law.  It  is  possible  that  the  difference  in  theory  can  be  traced  to 
the  territorial  isolation  of  England  in  the  days  when  common  law 
originated,  as  distinguished  from  the  situation  of  continental  Eu- 
ropean states,  where  the  effect  of  contiguity  and  a common  de- 
scent from  the  Roman  Empire  was  enhanced  by  the  medieval 
conception,  still  lingering  in  the  Roman  Law,  of  a world  state,  to 
which  all  territorial  states  are  subject.  However,  for  our  pur- 
poses the  origin  of  the  difference  in  theory  is  unimportant.  We 
do  not  care  whether  the  exemptions  from  territorial  sovereignty 
actually  practiced  were  originally  justified  by  a theory  of  comity 
or  of  legal  obligation.  It  remains  that  many  of  them  are  now 
so  habitually  observed  in  practice  as  to  be  distinctly  obligations 
of  international  law.  Others  are  observed  with  varying  fre- 
quency, so  should  be  classed  as  obligations  of  comity  and  good 
will  rather  than  law.  A third  class  of  such  concessions  consists 

^See  Chief  Justice  Marshall  in  The  Schooner  Exchange  vs,  McFad- 
don,  7 Cranch  ii6  (1812). 


45 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


46 


[46 


of  obligations  sometimes  enunciated  by  theorists  but  seldom  made 
effective  or  maintained  by  practical  diplomatists. 

In  the  first  class  are  the  complete  or  partial  exemptions  from 
territorial  jurisdiction  of  certain  foreign  agencies  of  government, 
such  as  executive  heads,  diplomatic  officers,  armed  forces,  public 
vessels,  consuls  and  sometimes  of  other  foreign  subjects,  to  which 
may  be  added  the  exemptions  from  complete  control  of  certain 
portions  of  territory,  such  as  international  rivers  and  canals, 
ports  and  territorial  waters  of  the  ocean,  and  recently  acquired 
territory. 

In  the  second  class  are  exceptions  from  the  usual  rule  that 
courts  apply  the  law  of  the  land.  Such  exemptions  occur  in  cases 
involving  foreign  persons,  foreign  judgments,  foreign  contracts, 
etc.  Here  exists  the  most  marked  difference  between  the  Anglo- 
American  and  Continental  theories.  Writers  of  the  latter  school 
usually  consider  it  a duty  of  the  state  to  assume  jurisdiction  of 
cases  and  apply  foreign  law  according  to  rules  of  private  interna- 
tional law.”  Common  law  writers,  on  the  other  hand,  generally 
consider  the  matter  entirely  one  of  comity  and  policy.^  They 
deny  that  a state  is  under  an  international  duty  to  apply  for- 
eign law  according  to  any  rules  other  than  those  its  own  jurispru- 
dence may  direct.  Consequently  they  sometimes  object  to  the 
term  ‘^private  international  law”  but  consider  the  rules  govern- 
ing ‘‘conflict  of  laws”  as  a branch  of  the  common  law.  Which 
theory  is  best  adapted  to  promote  the  welfare  of  men  and  na- 
tions we  shall  not  attempt  to  decide,  but  it  is  certain  that  no  sys- 

-See  H.  Bonfils,  Manuel  de  Droit  International  Public.  3rd.  ed.,  Paris, 

1901,  p.  3;  F.  DeMartens,  Traite  de  Droit  International,  3 vols.,  Paris, 
1883,  2;  391-400:  See  also  Annuaire  de  I’institut  de  Droit  International, 

1902,  1904,  1906,  1908  and  compare  attitude  of  representatives  of  Con- 
tinental and  Common  Law  countries  in  discussions  of  private  interna- 
tional law. 

^See  T.  E.  Holland,  Elements  of  Jurisprudence,  nth  ed.,  N.  Y., 
1910,  pp.  410-419:  J.  Westlake,  A Treatise  on  Private  International  Law, 
3rd  ed.,  London,  1890,  pp.  1-7:  Joseph  Story,  Commentaries  on  The  Con- 
flict of  Laws,  8th  ed.,  Boston,  1883,  pp.  8-9,  24;  F.  Wharton,  A Treatise 
on  the  Conflict  of  Laws,  3rd  ed.,  2 vols.,  N,  Y.,  1905,  pp.  2-4:  A.  V. 
Dicey,  A Digest  of  the  Law  of  England  with  reference  to  the  Conflict 
of  Law,  2nd  ed.,  London,  1908,  pp.  3-16:  F.  Pollock,  First  Book  of  Juris- 
prudence, 2nd  ed.,  London,  1904,  p.  99:  T.  J.  Lawrence,  Principles  of 
International  Law,  4th  ed.,  N.  Y.,  1910,  pp.  5-6:  A.  S.  Hershey,  The 
Essentials  of  International  Public  Law,  N.  Y.,  1912,  pp.  4-5,  Bibliography, 
P.  13. 


47] 


IN  TIME  OF  PEACE 


47 


tern  for  the  application  of  law  has  been  universally  consented  to 
at  present.  Although  American  courts  have  occasionally  applied 
rules  on  the  subject  because  they  deemed  them  established  by  in- 
ternational law,^  their  general  tendency  has  been  to  regard  prece- 
dents of  the  common  law  alone.  We  will  therefore  exclude  the 
rules  of  private  international  law  from  consideration.  At  pres- 
ent international  law  imposes  no  duty  upon  states  to  apply  for- 
eign law  in  certain  cases. 

In  the  third  class  are  duties  connected  with  the  control  of 
private  persons  and  commerce.  It  is  sometimes  asserted  that  states 
are  bound  to  acquiesce  in  the  immigration  of  foreigners  and  the 
emigration  of  inhabitants;  the  naturalization  of  aliens  and  the 
expatriation  of  citizens ; and  the  importation  and  exportation  of 
goods.^  If  the  state  were  really  under  an  international  obliga- 
tion to  acquiesce  in  these  matters,  if  it  had  no  legal  right  to  say 
who  should  enter  or  leave  its  territory,  who  should  form  its  citi- 
zenship and  what  commercial  policy  should  be  pursued,  the 
regime  of  territorial  state  sovereignty  would  be  at  an  end.  The 
United  States  has  certainly  not  acted  upon  this  theory  in  its  en- 
tirety. It  has  passed  laws  prohibiting  immigration  not  only  of 
various  classes  but  of  whole  races,  and  laws  expelling  aliens  after 
they  have  arrived.  In  its  diplomatic  correspondence,  instead  of 
maintaining  acquiescence  in  emigration  as  a duty  under  interna- 
tional law,  it  has  considered  it  a duty  of  states  to  prohibit  the 
emigration  of  certain  classes.®  Even  less  has  unlimited  admission 
to  citizenship  been  permitted  by  law.  Large  classes  and  whole 
races  are  permanently  excluded  from  this  privilege.  Laws  per- 
mitting naturalization  have  been  framed  with  reference  to  na- 
tional policy,  not  international  duty.  By  admitting  the  right  to 
restrict  emigration,  the  right  to  prevent  the  loss  of  its  citizens  by 

^See  Hilton  vs.  Guyot,  159  U.  S.  113  (1894),  in  which  Justice  Gray, 
speaking  for  the  court,  decided  that  international  law,  public  and  private, 
is  part  of  the  law  of  the  United  States  and  requires  adherence  to  the 
principle  of  reciprocity  in  applying  foreign  judgments.  He  therefore 
refused  to  apply  a French  judgment,  as  French  courts  did  not  apply 
foreign  judgments,  but  in  Ritchie  vs.  McMullen,  159  U.  S.  235,  at  the 
same  time,  he  applied  an  English  judgment  on  the  same  principle. 
Justices  Fuller,  Harlan,  Brewer,  and  Jackson  dissented  in  Hilton  vs  Guyot 
on  the  ground  that  the  common  law  was  decisive,  and  it  applied  the 
principle  of  res  judicata  to  foreign  as  well  as  domestic  judgments. 

^See  Bonfils,  op.  cit.,  sec.  412-414;  Hershey,  op.  cit.  p.  257,  and  note,, 
also  bibliography,  p.  273. 

®See  Moore’s  Digest,  2;427. 


48 


INTERNxVTIONAL  LAW  AND  MUNICIPAL  LAW 


[48 


expatriation  is  admitted.  Whether  the  citizens  who  have  emi- 
grated and  reside  abroad  may  expatriate  themselves,  acquire  citi- 
zenship in  another  country  and  claim  the  privileges  of  the  new 
citizenship  on  returning  is  a different  question.  The  United 
States  has  maintained  that  the  recognition  of  the  right  of  ex- 
patriation is  a duty  of  international  law,  but  all  nations  have  not 
given  assent  to  this  doctrine.”^  The  opinion  which  considers  a 
state  bound  to  acquiesce  in  the  freedom  of  commerce  has  cer- 
tainly received  no  countenance  from  American  practice.  The 
United  States  has  completely  prohibited  exportation,  by  embargo 
acts.  It  has  prohibited  trade  with  specified  countries  by  non- 
intercourse acts  and  has  habitually  placed  serious  limitations 
upon  importation  by  protective  tariffs.  No  duty  of  acquiescence 
in  these  fields  is  required  by  international  law,  and  the  subject 
need  no  longer  detain  us. 

Limiting  consideration  to  the  first  class,  we  may  discuss  the 
national  measures  enforcing  the  duty  to  acquiesce  in  limitations 
upon  the  complete  exercise  of  authority  within  the  territory, 
under  three  heads : ( 1 ) privileges  of  foreign  agencies  of  govern- 

ment and  persons,  (2)  liabilities  attached  to  newly  acquired  ter- 
ritory, (3)  exemptions  of  certain  portions  of  territory  from  com- 
plete control,  or  servitudes. 

As  in  the  case  of  the  duty  of  abstention  this  duty  is  one  di- 
rected immediately  to  the  sovereign  power  of  the  state.  If  the 
sovereign  refuses  to  acquiesce  in  the  immunity  of  ambassadors, 
and  orders  his  courts  to  assume  jurisdiction  over  them,  the  courts 
must  obey.  If  by  an  act  of  state  he  refuses  to  recognize  the  right 
of  inhabitants  of  acquired  territory  to  their  vested  rights  under 
the  former  sovereign,  the  courts  must  obey.®  Or  if  he  refuses  to 
permit  vessels  in  distress  to  enter  his  ports,  and  commerce  to  pass 
upon  his  boundary  rivers,  his  international  canals  and  his  terri- 
torial waters,  the  obligation  can  not  be  enforced  by  municipal 
law.®  In  all  of  these  cases,  however,  in  the  absence  of  express 

■^The  “inherent  right  of  expatriation”  was  enunciated  by  congress 
in  1864,  Rev.  Stat.,  1999-2000. 

®See  West  Rand  Central  Gold  Mining  Co.,  vs.  Rex.,  L.  R.  2 K.  B. 
391  (1905),  which  held  that  “an  act  of  state”  Barred  recovery  from  the 
British  government  of  a claim  due  from  the  Transvaal  government 
before  acquisition.  Discussion  of  this  case  by  J.  Westlake,  “Is  Int.  Law 
Part  of  the  Law  of  England?”,  Law  Quar.  Rev.,  22)14. 

^The  fortifications  of  the  Panama  Canal  amounts  to  an  announce- 
ment that  the  United  States  will  not  acquiesce  in  its  freedom  to  com- 
merce under  all  circumstances. 


49] 


IN  TIME  OF  PEACE 


49 


statute  the  courts  may  enforce  the  duty  by  adhering  to  the  rule 
that  international  law  is  to  be  applied  in  appropriate  cases,  and 
that  statutes  are  to  be  interpreted  so  far  as  possible  in  accord  with 
that  law.  And  where  the  rules  of  international  law  are  expressly 
declared  by  treaty,  statute  or  executive  order,  the  power  of  mu- 
nicipal law  to  enforce  is  clear. 

PRIVILEGES  OF  FOREIGN  AGENCIES  OF  GOVERNMENT  AND  PERSONS 

(1)  Foreign  public  vessels  are  granted  the  right  of  asylum 
coupled  with  immunity  from  local  jurisdiction  in  several  trea- 
ties,^® and  in  a large  number  of  treaties  the  United  States  has 
agreed  to  accord  the  most  favored  nation  treatment  to  the  diplo- 
matic representatives  of  the  contracting  power,^^  and  special 
privileges  have  frequently  been  thus  accorded  to  foreign  con- 
suls. These  privileges  do  not  in  general  extend  beyond  the  im- 
munity of  the  consular  archives  from  seizure,  the  inviolability  of 
the  consulate,  and  the  privilege  of  adjusting  disputes  between 
sailors  on  national  vessels  and  performing  functions  connected 
with  commerce.  Most  treaties  specify  that  the  consul  shall  be 
subject  to  local,  jurisdiction  in  the  same  manner  as  citizens  and 
to  most  favored  nation  treatment.^-  By  a few  treaties  consuls 
are  exempt  from  giving  testimony,^^  and  in  non-Christian  coun- 
tries, where  extraterritorial  privileges  are  granted  consuls  usually 
enjoy  diplomatic  immunities  by  treaty ; such  privileges,  however, 
are  not  reciprocal.^^ 

The  consular  regulations  and  diplomatic  instructions  outline 

loSee  Treaties,  France,  1778-1798,  art.  17,  Malloy  p.  474;  1800-1809, 
art.  24,  p.  504;  Great  Britain,  1794-1807,  art  25,  p.  604;  Prussia,  1785- 
1796,  art.  19,  p.  1483;  1799-1810,  revived  1828,  art.  19,  p.  1493;  Sweden, 
1783-1799,  revived  1816,  1827,  art.  19,  p.  1732;  Netherlands,  1782-1795, 
art.  5,  P.  1245. 

^^Such  treaties  have  been  concluded  with  twenty-one  countries, 
mostly  in  South  and  Central  America.  The  Spanish  treaty  of  1902,  also, 
contained  this  stipulation  (art.  12,  Malloy,  p.  1704). 

104  treaties  with  51  countries  provision  for  consular  officers  is 
made.  20  special  consular  conventions  with  15  countries  have  been 
concluded.  Consular  conventions  with  practically  all  countries  are  now 
in  force.  Russia,  however,  since  the  termination  of  the  treaty  of  1832, 
by  joint  resolution  of  congress  in  1911,  is  an  exception  to  this  rule. 

i^For  example  see  treaty  with  France,  1853,  art.  2,  Malloy,  p.  529. 
i^See  Moore’s  Digest,  5,  37-40.  Supra,  pp.  39-40. 


50 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[50 


the  privileges  of  such  officers.  These  executive  orders  are  not  of 
importance  in  enforcing  the  country’s  duty  of  acquiescing  in  the 
immunities  of  foreign  resident  officers,  hut  they  illustrate  the 
view  of  the  law  taken  by  the  United  States. 

In  several  treaties  private  citizens  of  the  contracting  parties 
are  granted  immunity  from  military  service.^® 

(2)  Courts  have  enforced  the  duty  to  acquiesce  in  the  im- 
munities granted  by  treaty  and  statute  as  well  as  others  recog- 
nized by  international  law.  They  have  held  that  jurisdiction 
may  not  be  assumed  of  suits  against  foreign  sovereigns, 
and  former  officers  of  foreign  governments,^®  for  politi- 
cal acts,  even  when  they  are  within  the  territory.  The 
same  exemption  has  been  held  to  apply  to  public  ves- 
sels^® and  other  personal  property  of  a foreign  state  or  sov- 
ereign.-® Public  armed  troops  and  soldiers  have  also  generally 
been  held  exempt  when  acting  under  orders  of  their  sovereign,^^ 
but  in  the  celebrated  case  of  People  vs.  McLeod, in  which  a 
court  of  the  state  of  New  York  refused  to  recognize  such  immu- 
nities, a reverse  attitude  was  taken.  In  this  case  the  authorities 
at  Washington  favored  the  release  of  McLeod  in  accordance 
with  international  duty,  but  were  unable  to  release  him  from 
state  authority.  The  case  illustrates  the  obstacle  which  the  divi- 

i^Consular  Regulations,  1896,  sec.  71-75,  82.  Diplomatic  instructions, 
1897,  sec.  18,  46-49. 

^®Such  treaties  have  been  concluded  with  sixteen  countries.  Those 
with  Argentina,  1853,  art.  10,  Malloy,  p.  23;  Congo,  1891,  art.  3,  p.  329; 
Costa  Rico,  1851,  art.  9,  p.  344;  Honduras,  1864,  art.  9,  p.  955;  Italy,  1871, 
art.  3,  p.  970;  Japan,  1894,  art.  i,  p.  1029;  Paraguay,  1859,  art.  ii,  p.  1367; 
Servia,  1881,  art.  4,  p.  1615;  Spain,  1902,  art.  5,  p.  1703,  are  now  in  force. 

i^See  Dicta  by  Chief  Justice  Marshall,  in  Schooner  Exchange  vs. 
McFaddon,  7 Cranch  116  (1812).  British  case,  Mighell  vs.  Sultan  of 
Johore,  L.  R.,  1894,  Q.  B.  D.,  i ; 149. 

i^Underhill  vs.  Hernandez,  168  U.  S.  250. 

^®U.  S.  Peters,  3 Dali.  121 ; Schooner  Exchange  vs.  McFaddon,  7 
Cranch  116,  137  (1812)  ; Tucker  vs.  Alexandroff,  183  U.  S.  424  (1902). 
See  British  case.  The  Parlement  Beige,  L.  R.,  5 P.  D.  197,  217  (1900), 
Bentwich,  p.  123;  Scott,  220. 

“*^Hassard  vs.  U.  S.  of  Mexico,  61  N.  Y.  S.  939  (1899).  British 
case,  Vavasseur  vs.  Krupp,  L.  R.  9,  Ch.  D.  351  (1878)  ; Moore’s  Digest,  2, 

558-593. 

2iTucker  vs.  Alexandroff,  183  U.  S.  424  (1902);  Dicta  Schooner 
Exchange  vs.  McFaddon,  7 Cranch  116  (1812). 

-^People  vs.  McLeod,  25  Wend,  253;  26  Wend,  663;  See  Moore’s 
Digest,  2;  24-25.  McLeod  was  tried  and  finally  acquitted  on  an  alibi. 


51] 


IN  TIME  OF  PEACE 


51 


sion  of  power  between  state  and  national  government  may  oiler 
to  the  performance  of  international  duties.  Soon  after  this  case, 
by  an  act  of  1842,^^  congress  provided  for  the  release  of  such  per- 
sons from  state  courts  by  habeas  corpus  issued  by  federal  courts. 

The  exceptions  to  the  general  rule  of  exemption  in  cases 
where  it  becomes  necessary  for  the  state  to  vindicate  a violation 
of  its  neutrality  are  considered  under  that  subject.^^ 

(3)  By  statute  courts  are  forbidden  to  take  jurisdiction  of 
cases  against  diplomatic  ministers  and  members  of  their  house- 
holds upon  either  civil  or  criminal  charges.^®  This  has  been  held 
to  apply  to  such  officers  accredited  to  third  countries  in  transit 
through  the  United  States^®  as  well  as  those  accredited  to  the 
United  States,  but  the  person  claiming  immunity  must  be  an 
actual  diplomatic  officer.  A consul  general  performing  diplo- 
matic functions  was  held  not  to  be  within  the  immunity.-’’  Few 
cases  have  come  before  United  States  courts  involving,  directly, 
jurisdiction  over  diplomatic  officers.  Generally  a release  has 
been  effected  by  executive  authority  before  the  process  has  gone 
so  far.  In  a number  of  cases  dealing  with  the  punishment  of  per- 
sons violating  diplomatic  immunities  the  question  has  been  dis- 
cussed.^® The  courts  have  also  held  that  a diplomatic  officer  may 
not  be  compelled  to  give  testimony.-® 

For  the  better  enforcement  of  these  duties  the  constitution 
has  conferred  jurisdiction  over  cases  involving  ambassadors  and 
public  ministers  upon  the  federal  courts,  and  has  also  given  the 
supreme  court  original  jurisdiction  in  such  cases.®®  Statutes®^ 

23Act  Aug.  29,  1842,  Rev.  Stat.  sec.  753 ; Moore’s  Digest,  2 ; 30. 

-•^Infra,  p.  129  et  seq. 

25Act.  Apr.  30,  1790,  I Stat.  117,  Rev.  Stat,  sec.  4063-4064. 

26Wilson  vs.  Blanco,  56  N.  Y.  Superior  Court  582;  4 N.  Y.  S.  714; 
Scott,  206. 

re  Baiz,  135  U.  S.  403  See  British  case,  Heathfield  vs.  Chilton, 
4 Burr.  2015,  Scott,  189.  On  diplomatic  immunities  generally  see  Ex 
Parte  Cabrera,  i Wash.  C.  C.  232;  Cushing  Att.  Gen.,  7 op.  367  (1855)  ; 
Triquet  vs.  Bath,  3 Burr.  1478,  and  other  English  cases,  cited  Scott, 
191,  note. 

28U.  S.  vs.  Diddle,  ? Wash.  C.  C.  205  (1808)  ; Res  Publica  vs.  De 
Longchamps,  i Dali,  iii  (Pa.  1784)  ; U.  S.  vs.  Ortega,  4 Wash.  C.  C. 
531  (1825)  ; U.  S.  vs.  Benner,  Baldwin  234. 

“®Guiteau’s  Trial,  i;  136;  Moore’s  Digest,  4;  645. 

^^Constitution,  Art  iii. 

sijudiciary  Act,  Sept  24,  1789,  sec.  9,  ii,  13,  i Stat  76,  Rev.  Stat 
Sec.  687,  71 1,  Judicial  Code  1911,  36  Stat.  1087,  sec.  256,  cl.  8. 


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INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[52 


have  made  jurisdiction  over  such  officers  or  their  households  ex- 
clusive in  the  federal  courts,  thus  prohibiting  the  exercise  of  any 
such  authority  by  state  courts,  and  preventing  an  occurrence  in 
reference  to  public  ministers  similar  to  that  of  the  McLeod  case, 
in  reference  to  foreign  armed  forces.  Statutes  have  also  pro- 
vided that  the  supreme  court  “shall  have,  exclusively,  all  such 
jurisdiction  of  suits  or  proceedings  against  ambassadors  or  other 
public  ministers  or  their  domestics  or  servants  as  a court  of  law 
can  have  consistently  with  the  law  of  the  nations.  ’ 

The  courts  have  held  that  consuls  are  not  entitled  to  the  im- 
munity of  ambassadors,  but  are  subject  to  criminal  and  civil  ju- 
risdiction.^^ Consuls  are  generally  held  exempt  from  military 
and  jury  service,  but  United  States  citizens  holding  foreign  con- 
sular positions  may  not  claim  this  exemption,^^  and  trading  con- 
suls are  subject  to  the  liabilities  of  native  merchants  in  all  that 
concerns  their  business.^®  Treaty  privileges  of  consuls  are  pro- 
tected by  the  constitutional  principle  that  treaties  are  law  to  be 
applied  by  the  courts.  In  a case  in  which  a consul  claimed  immu- 
nity from  subpoena  under  treaty,  the  court  held  that  even  the 
constitutional  provision  giving  a person  under  criminal  indict- 
ment the  right  “to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor  ’ ’ would  not  permit  of  serving  process  on  such 
a consul.^® 

The  constitution  confers  jurisdiction,  in  cases  affecting  con- 
suls, upon  federal  courts  and  original  jurisdiction  in  such  cases 
upon  the  supreme  court.  By  the  Judiciary  Act  of  1789,^^  juris- 

^2Rev.  Stat.  687;  Judicial  Code,  1911,  36  Stat.  1087.  sec.  233. 

33Commonwealth  vs.  Kosloff,  5 Serg.  and  Rawle,  545,  (Pa.  1816)  ; 
Coppell  vs.  Hall,  7 Wall.  542,  (1868)  ; Gittings  vs.  Crawford,  Taney’s 
Decisions,  i ; In  Re  Baiz,  135  U.  S.  403 ; Berrien,  Att.  Gen.  2 op.  378, 
(1830)  ; Butler  Att.  Gen.,  2 op.  725,  (1835)  ; Cushing  Att.  Gen.  6 op.  18, 
367,  (1854-1855).  In  U.  S.  vs.  Ravara,  2 Dali.  297,  (1793),  a consul 
was  subjected  to  criminal  jurisdiction.  British  cases,  see  Barbuit’s  case, 
Cas.  Temp.  Talbot,  231  (1737)  ; Clark  vs.  Cretico,  i Taunt.  106,  (1808)  ; 
Viveash  vs.  Beckers  3 M.  & S.  284,  (1814). 

s^Cushing  Att.  Gen.,  8 op.  169,  (1856). 

^^Coppell  vs.  Hall,  7 Wall  542,  (1868). 

^®In  Re  Dillon,  Fed.  Cas.  710;  Moore’s  Digest  5 ;78.  The  court 
held  that  the  constitutional  provisions  only  insure  equal  privileges  in 
obtaining  witnesses  to  the  accused  and  the  government,  not  an  absolute 
right  in  either  case.  The  French  government  maintained  that  rights 
of  its  consul  under  international  law  as  well  as  under  treaty  had  been 
violated  by  the  serving  of  process  which  gave  rise  to  this  case. 

^^Judiciary  Act.  1789,  Rev.  Stat.  sec.  71 1,  Cl.  8. 


53] 


IN  TIME  OF  PEACE 


53 


diction  of  suits  against  consuls  was  given  exclusively  to  federal 
courts.  By  an  act  of  1875  this  provision  was  repealed,  giving 
state  courts  a concurrent  jurisdiction,  but  in  the  Judicial  code  of 
1911  the  jurisdiction  of  federal  courts  was  again  made  exclusive. 
The  supreme  court  exercises  original,  but  not  exclusive,  jurisdic- 
tion in  such  cases.®® 

(4)  A more  extensive  limitation  upon  territorial  sovereignty 
than  the  mere  immunity  of  consuls  in  these  respects,  is  the  juris- 
dictional privileges  accorded  by  some  treaties.  The  United  States 
has  never  concluded  treaties  by  which  foreign  consuls  or  diplo- 
matic officers  exercise  extraterritorial  jurisdiction  in  its  territory 
to  the  extent  that  such  jurisdiction  is  commonly  exercised  in  non- 
Christian  countries,  but  certain  privileges  have  been  accorded. 
These  privileges,  which  have  always  been  reciprocal,  generally 
permit  foreign  consuls  to  ‘^sit  as  judges  or  arbitrators  in  such 
differences  as  may  arise  between  the  captain  and  crew  of  the  ves- 
sels belonging  to  the  nations  whose  interests  are  instrusted  to 
their  charge,  without  the  interference  of  the  local  authorities,’^ 
and  to  require  the  assistance  of  local  authorities  ‘‘to  cause  their 
decision  to  be  carried  into  effect  or  supported.”®^  These  treaties 
undoubtedly  impose  a duty  upon  the  United  States  to  acquiesce 
in  the  consular  jurisdiction  provided  for.  It  has  been  held  that 
the  authority  is  ministerial  and  not  judicial,^®  and  in  an  early 
opinion  the  court  expressed  the  view  that  the  treaties  were  not  self- 
executing, and  local  officers  could  not  lend  assistance  without  stat- 
utory authority.^^  This  view  is  not  generally  maintained,  but  to 
avoid  difficulties  a statute  of  1864^^  required  United  States  courts 

38Act.  187s,  18  Stat.  318.  See  Wilcox  vs.  Luco,  18  Cal.  639,  (1898). 
The  court  below  held  that  the  constitutional  provision  alone  gave  exclu- 
sive jurisdiction  to  federal  courts,  but  this  was  reversed  in  the  state 
supreme  court.  See  Moore’s  Digest,  5 ;72-77,  Scott,  205-206,  note.  Judicial 
code  1911,  36  Stat,  1087,  sec.  256,  Cl  8:  sec.  233. 

39See  Treaties  with  Prussia,  1828,  art.  10,  Malloy,  p.  1499;  France, 
1853,  art.  8,  p.  531;  Italy,  1878-1881,  art.  ii,  p.  980;  1881,  art.  i,  p.  983; 
Sweden  and  Norway,  1827,  art.  13,  p.  1753;  Austria-Hungary,  1870,  art. 
II.  p.  42;  Belgium,  1880,  art.  ii,  p.  97;  Germany,  1871,  art.  13,  p.  554.  See 
also  Consular  Regulations,  1896,  and  Moore’s  Digest,  2)298.  The  treaty 
with  France  1788-1798,  art.  12,  Malloy,  p.  495  gave  consular  courts  juris- 
diction “of  all  differences  and  suits  between  subjects”  of  the  respective 
countries.  See  Moore’s  Digest  2)83-85. 

^oCushing  Att.  Gen.,  8 op.  380,  (1857). 

^^See  Moore’s  Digest,  2)298. 

^2Act  June  ii,  1864,  13  Stat.  12,  Judicial  code,  1911,  36  Stat.  1087,  sec. 


271. 


54 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[54 


and  officers  to  issue  process  on  application  of  consuls  in  fulfill- 
ment of  treaty  obligations  when  that  country  accorded  reciprocal 
privileges  as  attested  by  proclamation  of  the  president.  The 
president  has  proclaimed  this  situation  with  reference  to  most  of 
the  treaties  in  force.^^  The  courts  have  enforced  these  provisions 
by  refusing  jurisdiction  of  cases  coming  within  the  consular 
privileges, but  it  has  been  held  that  where  disturbances  affect 
the  tranquillity  of  the  port,  the  national  courts  may  always  exer- 
cise jurisdiction."^® 

(5)  An  exemption  from  territorial  jurisdiction  which  if  car- 
ried to  excess  might  become  a source  of  public  danger  is  that 
granted  to  persons  within  diplomatic  residences,  consulates  or 
public  vessels.  This  is  known  as  the  right  of  asylum.^®  It  should 
be  noted  that  the  immunity  of  public  vessels  and  diplomatic  and 
consular  residences  does  not  necessarily  imply  a right  of  giving 
asylum.  Thus  a great  many  treaties  declare  that  consular  resi- 
dences shall  be  inviolable,  but  ‘4n  no  case  shall  their  offices  and 
dwellings  be  used  as  places  of  asylum.  ’ Although  this  distinc- 
tion may  exist  in  reference  to  the  duty  of  the  foreign  privileged 
authority,  it  can  not  with  reference  to  the  duty  of  the  state  upon 
whose  territory  this  authority  is  located.  If  the  state  must  ac- 
quiesce in  the  immunity  from  entry  of  a diplomatic  residence  or 
a public  vessel,  it  must  also  acquiesce  in  its  use  as  an  asylum,  so 
far  as  immediate  assertion  of  its  authority  is  concerned.  It  can 
of  course  protest  and  recover  the  fugitive  by  diplomatic  means. 

^^Proclamations  Feb.  lo,  1870,  May  ii,  1872;  See  Moore’s  Digest, 
2 ;299. 

■^^Tellefsen  vs.  Fee,  46  N.  E.  562,  (Mass.)  ; The  Elwine  Kreplin,  9 
Blatch.  438;  Williams  vs.  Wellhaven,  55  Eed.  Rep.  80. 

*®This  exception  to  the  consular  privilege  is  specified  in  all  of  the 
treaties  mentioned,  (note  39),  except  that  with  Erance  1853,  art.  8,  p.  531. 
See  Wildenhus’  case,  120  U.  S.  i ; Com.  vs.  Luckness,  14  Phila.  363,  (Pa.)  ; 
Taft,  Att.  Gen.,  15,  op.  178,  (1878). 

4®On  the  right  of  asylum  see  Moore’s  Digest,  2;755.  In  early  times 
the  privilege  of  giving  asylum  was  recognized  and  often  abused.  Moore 
says,  “In  some  instances  ambassadors  of  a thrifty  turn  realized  enormous 
profits  by  hiring  and  granting  their  protection  to  houses  which  they  then 
sublet  to  malefactors”.  Moore’s  Digest,  2;759. 

^^See  Treaties  with  Netherlands,  1878;  Salvador,  1870;  Erance,  1853; 
Belgium,  1868;  1880;  Italy,  1868;  1878;  Roumania,  1881;  Servia,  1881;  The 
German  treaty  of  1871,  art.  5,  Malloy  p.  552,  declares  that  consulates  shall 
be  inviolable  “except  in  the  case  of  pursuit  of  crime.”  See  Moore’s  Di- 
gest, 2;755-7S7. 


55] 


IN  TIME  OF  PEACE 


55 


In  its  diplomatic  instructions,  consular  regulations  and  naval 
instructions,  the  United  States  forbids  the  granting  of  asylum  ex- 
cept in  unusual  cases.^®  This  is  the  practice  generally  required 
by  treaties  and  may  be  said  to  be  the  law,  although  in  a number 
of  cases  American  officials  have  given  asylum,  especially  to  politi- 
cal refugees  in  South  American  countries.^® 

On  the  other  hand  the  United  States  has  generally  recog- 
nized the  immunity  of  diplomatic  residences  and  foreign  vessels 
of  war  from  entry  and  service  of  legal  process,  although  in  an 
opinion  of  1794^®  Attorney  General  Bradford  held  that  a writ  of 
habeas  corpus  could  be  served  on  a foreign  public  vessel,  while 
in  1799®^  Attorney  General  Lee  thought  civil  or  criminal  process 
might  be  served  in  a British  man  of  war.  In  an  opinion  of  1855®^ 
Attorney  General  Cushing  emphatically  maintained  the  doctrine 
of  exemption,  going  even  to  the  extent  of  extraterritoriality.  In 
several  treaties  the  right  of  asylum  to  slaves  on  public  vessels  is 
affirmed,®^  and  in  the  Brussels  act  of  1890^^  slaves  fleeing  to  war 
vessels  of  the  signatories  are  declared  to  become  free.  Consulates 
do  not  enjoy  immunities,  by  international  law,  and  consequently 
could  under  no  circumstances  give  asylum,  unless  immunity  is 
granted  by  treaty,  as  is  done  in  a number  of  cases. 

Acquiescence  in  the  right  of  asylum,  so  far  as  it  is  necessi- 
tated by  the  immunity  of  diplomatic  residences,  consulates  and 
public  vessels  from  territorial  jurisdiction,  is  enforced  by  the 
same  means  but  there  is  really  no  duty  of  acquiescence,  for  the 

^^See  Diplomatic  instructions,  1897,  sec.  49-51 ; Consular  Regulations, 
1896,  sec.  80;  Navy  Regulations,  1913,  sec.  1649. 

49See  Moore’s  Digest,  2;78i-883. 

^oRradford  Att.  Gen.,  i op.  47,  (1794). 

siLee  Att.  Gen.,  i op.  87,  89,  (1799). 

52Cushing  Att.  Gen.,  7 op.  1 12;  8 op.  73,  (1855,  1856). 

the  treaty  with  Algiers  of  1795-1815,  art.  ii,  Malloy  p.  3,  the  re- 
turn of  slaves  fleeing  to  public  vessels  was  required;  by  that  of  1816-1830, 
art.  14,  p.  14,  Christian  captives  fleeing  to  United  States  public  vessels 
might  be  granted  asylum.  By  the  treaty  with  Tunis  1797-1824,  art.  6,  p.  1795, 
the  return  of  slaves  was  demanded,  but  as  amended  in  1824-1904,  art.  6,  p. 
1801,  slaves  gaining  asylum  were  free.  The  treaty  with  Madagascar,  1881- 
1896,  art.  7,  p.  1071,  forbade  the  giving  of  asylum  to  slaves. 

^^General  act  for  the  Repression  of  the  Slave  Trade,  Brussel’s  Con- 
vention, 1890,  art.  28,  Malloy,  p.  1975. 

^^See  U.  S.  vs.  Jeffers,  4 Cranch  C.  C.  704,  Scott,  256,  (1836),  in  which 
a constable  was  removed  from  office  for  arresting  a fugitive  slave  in  the 
house  of  a British  Secretary  of  Legation.  See  British  case,  Forbes  vs. 
Cochrane,  2 Barn.  & Cress,  448,  (K.  B.  1824),  Scott,  258,  where  it  was 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


56 


[56 


state  may,  within  its  international  right,  protest  the  matter  dip- 
lomatically. 

Eesident  subjects  of  foreign  states  are  permitted  no  special 
privileges  or  exemptions  from  territorial  jurisdiction  except  those 
specifically  accorded  by  treaty,  such  as  military  exemptions.  In 
these  cases  the  courts  by  directly  enforcing  treaty  provisions  as 
law  may  enforce  the  states’  duty  of  acquiescence. 

LIABILITIES  ATTACHED  TO  NEWLY  ACQUIRED  TERRITORY 

The  second  duty  of  acquiescence  relates  to  the  rights  of  the 
inhabitants  of  newly  acquired  territory  and  the  liabilities 
attached  to  the  land.  The  rules  governing  these  matters  are 
ordinarily  spoken  of  as  the  law  of  succession.  According  to  the 
strict  principle  of  territorial  sovereignty,  as  soon  as  new  terri- 
tory is  acquired,  any  relations  between  its  inhabitants  and  the 
new  government  would  become  matters  of  municipal  law.  No 
obligations  of  international  law  could  exist.  The  actual  law, 
however,  recognizes  this  case  as  an  exception  to  the  usual  rule 
of  complete  territorial  sovereignty.  The  land  must  be  taken 
subject  to  a kind  of  servitude.  The  acquiring  state  must 
acquiesce  in  pre-existing  rights  of  the  inhabitants  and  pre-exist- 
ing rights  of  third  parties  hypothecated  upon  the  territory. 
These  obligations  may  be  classified  under  three  heads : ( 1 ) 
treaties  imposing  obligations  upon  the  former  sovereign,  (2) 
liabilities  attached  to  the  territory,  (3)  rights  of  the  inhabitants 
derived  from  the  former  sovereign. 


held  that  slaves  reaching  a British  warship  became  free ; hence  Forbes, 
the  owner  of  a plantation  in  Florida,  had  no  action  against  Cockburn,  com- 
mander of  a public  vessel,  for  affording  asylum  to  and  carrying  off  such 
fugitive  slaves.  For  extended  discussion  of  rights  of  asylum  on  public  ves- 
sels and  limits  of  local  jurisdiction  over  such  vessels  in  port  according  to 
English  law,  see  Report  of  Royal  Commission  on  Fugitive  Slaves,  1876. 
Great  Britain  forbade  public  vessel  to  give  asylum  to  slaves  by  an  order  of 
1875,  (Br.  and  For.  St.  Papers,  66 1892).  The  Royal  commission  appointed  to 
consider  this  order  held  as  follows : For  right  of  asylum  and  extraterrito- 
riality, Phillimore,  Bernard,  Maine ; Contra,  Cockburn,  Archbald,  Thesiger, 
H.  T.  Holland,  Fitz James  Stephen,  Rothery,  but  they  held  that  asylum 
might  be  given  as  a matter  of  humanity  and  in  any  case  the  local  authori- 
ties could  not  recover  the  fugitives  by  entry  of  the  vessel.  It  is  interest- 
ing to  note  that  the  line  of  cleavage  is  between  publicists  on  international 
law  and  common  law  lawyers  and  judges.  See  in  reference  to  the  work 
of  this  commission,  Maine,  Int.  Law,  p.  88;  Stephen,  Hist,  of  the  Crimi- 
nal Law,  2;57;  Jour,  of  Jurisprudence,  20,  1888;  Moore,  Digest,  21848. 


57] 


IN  TIME  OP  PEACE 


57 


(1)  International  law  requires  the  new  sovereign  to  recog- 
nize the  obligations  of  treaties  concluded  by  the  old  sovereign 
only  in  case  of  universal  succession.  There  have  been  two  cases 
of  this  character  in  the  history  of  the  United  States,  those  of 
Texas  and  Hawaii.  Both  states  had  concluded  treaties  with 
third  parties  before  annexation.^®  In  both  cases,  in  the  resolu- 
tion of  annexation  the  United  States  declared  all  treaties  of  the 
former  states  abrogated.  J apan  offered  some  protest  to  the  abro- 
gation of  her  treaty  with  Hawaii  but  the  United  States  dis- 
avowed any  intention  of  violating  vested  rights  of  Japanese  sub- 
jects under  this  treaty,  and  no  specific  case  seems  to  have 
arisen.®^ 

(2)  The  second  case  has  arisen  in  connection  with  the 

annexation  of  Texas  and  Hawaii  and  the  cessions  of  Spain  fol- 
lowing the  war  of  The  United  States  assumed  by  statute 

liabilities  hypothecated  upon  the  revenues  to  a specified  amount 
in  the  first  two  cases.®®  In  the  case  of  the  Spanish  cessions  the 

®®See  Treaties  of  Texas  with  France,  1839,  Marten’s  N.  R.,  i6;987: 
with  Great  Britain,  1840,  Marten’s  N.  R.  G.,  4;i5o6:  1841,  Ibid.  4;6o9: 
with  Netherlands,  1840,  Ibid,  i ;375 : See  Moore’s  Digest,  i ;456.  Texas 
had  also  concluded  treaties  with  the  United  States,  see  Malloy,  pp.  1778-9, 
which  were  of  course  abrogated  by  annexation.  See  treaty  of  Hawaii 
with  Japan,  1886,  Br.  and  For.  St.  Pap.,  77;94i. 

Joint  Resolution,  Mch.  i,  1845,  5 Stat.  797;  July  7,  1898,  Sec.  4,  Ger- 
many claimed  that  she  retained  special  rights  in  the  Zulu  Archipeligo  un- 
der protocol  with  Spain  of  Mch.  ii,  1877,  after  cession  of  the  Philippines 
to  the  United  States,  a contention  denied  by  the  United  States.  See 
Moore’s  Digest  5;  346-352. 

®^The  Act  of  Aug.  8,  1790,  sponsored  by  Hamilton,  whereby  the  na- 
tional governm'ent,  as  succeeding  to  much  of  the  sovereignty  of  the  states 
by  the  constitution  of  1789,  assumed  their  Revolutionary  debts  to  the 
amount  of  $21,500,000,  may  also  be  cited  as  a recognition  of  the  duty  of 
the  successor  to  sovereignty.  I Stat.  142,  Sec.  13. 

^^By  the  joint  resolution  of  Mch.  i,  1845,  5 stat.  797,  consenting  to  the 
admission  of  Texas  to  the  Union,  it  was  sp-ecified  that  Texas  should  re- 
tain public  funds,  debts,  taxes  and  dues  owed  the  Republic,  and  vacant 
lands,  to  be  applied  to  the  payment  of  debts  which  were  in  “no  event  to  be- 
come a charge  upon  the  United  States.”  By  an  act  of  Sept.  9,  1850,  9 Stat. 
446,  on  consideration  of  a boundary  modification  and  relinquishment  by 
Texas  of  “all  claims  upon  the  United  States  for  liability  of  the  debts  of 
Texas”  the  United  States  agreed  to  pay  $10,000,000  to  the  state,  half  of 
which  was  to  b^  retained  until  “the  creditors  of  the  state  holding  bonds 
and  other  certificates  of  the  state  of  Texas  for  which  duties  on  imports 
were  specially  pledged  shall  first  file  at  the  Treasury  of  the  United  States, 


58 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[58 


United  States  refused  to  include  in  the  treaty  of  peace  a pro- 
vision presented  by  the  Spanish  plenipotentiaries  by  which  the 
United  States  was  to  assume  ‘‘all  charges  and  obligations  of 
every  kind  in  existence  at  the  time  of  the  ratification  of  the 
treaty  of  peace  which  the  crown  of  Spain  * * may  have  con- 

tracted lawfully  in  the  exercise  of  the  sovereignty  hereby  relin- 
quished and  transferred,  and  which  as  such  constitute  an  inte- 
gral part  thereof.”®®  It  also  rejected  a provision  requiring  that 
“grants  and  contracts  for  public  works  and  services”  in  Cuba, 
Porto  Rico,  and  the  Philippines  be  “maintained  in  force  until 
their  expiration,  in  accordance  with  the  terms  thereof,  the  new 
government  assuming  all  the  rights  and  obligations  thereby 
attaching  up  to  the  present  time  to  the  Spanish  government.” 
It,  however,  disavowed,  any  purpose  “to  disregard  the  obliga- 
tions of  international  law  in  respect  to  such  contracts.”®^  A 
number  of  claims  based  on  Spanish  concessions  w^ere  presented  to 
the  government  and  were  variously  settled  in  accordance  with 
opinions  of  attorneys  general  and  law  officers  of  the  War  Depart- 
ment, which  was  then  administering  the  Islands.®-  As  an 
example  may  be  mentioned  the  case  of  the  Manila  Railway  Co., 
a corporation  subsidized  by  the  Spanish  government  which 

releases  of  all  claims  against  the  United  States.”  As  few  of  the  Texan 
bonds  were  specifically  pledged  upon  imports,  the  act  gave  rise  to  ques- 
tion, but  was  held  to  require  payment  of  all  bonds.  (See  Cushing  Att. 
Gen.  6 op.  130,  (1853),  Corwin,  Sec.  of  Treas.,  Sen.  Ex.  Doc.,  103,  (34th 
Cong,  ist  Sess,  p.  406-7).  In  the  British  claims  arbitration  of  1853,  claims 
for  Texan  bonds  were  presented  and  the  commission  held  that  the  United 
States  was  not  liable,  hence  these  claims  were  not  within  the  competence 
of  the  arbitral  court.  The  matter  was  concluded  by  an  act  of  Feb.  28, 
185s,  10  stat.  617,  by  which  the  United  States  agreed  to  pay  Texan 
debts  for  which  the  revenues  of  the  state  were  pledged  to  the 
the  amount  of  $7,750,000,  to  be  apportioned  pro  rata  among  the  creditors. 
See  Moore’s  Digest,  i ; 343-347.  In  the  Joint  Resolution  of  July  7,  1898, 
annexing  Hawaii,  “the  public  debt  of  the  Republic  of  Hawaii”  was  as- 
sumed by  the  United  States  to  an  amount  not  to  exceed  $'4,000,000.  See 
Moore’s  Digest,  i ;35i. 

60This  applied  to  Cuba  and  Porto  Rico.  See  Moore’s  Digest,  i ;352. 
The  United  States  delegation  held  that  these  obligations  were  incurred 
in  a fruitless  effort  to  pacify  the  Islands  extending  over  a long  period  of 
years.  The  expenditure  did  not  benefit  the  Islands  and  should  be  con- 
sidered liabilities  of  the  Spanish  nation,  not  of  the  Islands.  See  Moore’s 
Digest,  i;35i-385. 

®iMoore’s  Digest,  i ;389-390. 

62Griggs.  Att.  Gen.,  22  op.  310,  408,  514,  520,  546;  23  op.  181 ; Knox, 
Att.  Gen.  23  op.  451. 


59] 


IN  TIME  OF  PEACE 


59 


claimed  a continuance  of  the  periodic  subsidies  by  the  new  gov- 
ernment. The  law  officer  of  the  Division  of  Insular  affairs  of 
the  War  Departments^  advised  the  non-allowance  of  the  claim, 
holding  it  to  be  a personal  obligation  of  the  Spanish  sovereign, 
but  the  attorney  general®^  took  a contrary  view,  and  in  an  official 
opinion  held  that  the  United  States  was  liable  for  this  obligation 
under  international  law. 

To  summarize,  the  United  States  has  generally  acknowledged 
its  obligation  to  pay  debts  pledged  on  the  revenue,  and  contracts 
for  the  improvement  of  territory  to  which  it  has  succeeded.  It 
however,  denied  such  an  obligation  with  reference  to  the  general 
public  debt  of  the  dismembered  state,  in  cases  of  partial  suc- 
cession. 

(3)  Certain  rights  of  the  inhabitants  have  generally  been 
specified  in  treaties  ceding  territory  to  the  United  States.  Free- 
dom to  leave  the  country  and  retain  their  former  allegiance 
without  loss  of  property,  and  in  case  of  election  to  remain  in  the 
territory,  guarantees  of  civil  rights,  religious  liberty  and  some- 
times admission  to  American  citizenship  have  generally  been  so 
stipulated.®^  Similar  provisions  have  been  contained  in  resolu- 
tions, statutes  and  executive  orders  relating  to  the  annexation, 
government  and  administration  of  new  territory.®®  By  enforc- 
ing these  provisions  the  courts  have  enforced  the  government’s 
obligations  under  international  law. 

The  enforcement  of  constitutional  guarantees  also  acts  to 
protect  the  rights  of  inhabitants  of  such  territory,  but  the  courts 
have  drawn  distinctions  as  to  the  applicability  of  these  guar- 
antees to  different  kinds  of  acquisitions.  All  of  the  constitutional 

®3Magoon’s  Reports,  177. 

64Griggs  Att.  Gen.,  23  op.  181 ; Knox  Att.  Gen.,  23  op.  1,451.  See 
Moore’s  Digest,  i ;389-4io. 

^^Treaties  with  Great  Britain,  1783,  art.  4,  5,  6,  Malloy,  p.  586;  1840, 
art.  3,  p.  656;  France,  1803,  art.  3,  6,  p.  508;  Mexico,  1848,  art.  8,  9,  ii,  p. 
iiii;  1853,  art.  2,  5,  p.  1121;  Russia,  1867,  art.  3,  p.  1523;  Spain,  1819,  art. 
5,  6,  8,  p.  1653 ; 1898,  art.  9,-12,  p.  1690. 

®®See  Northwest  Ordinance,  July  13,  1787;  Act.  Aug.  7,  1789;  in  ref- 
erence to  Louisiana,  Act.  Oct.  2,  1803,  2 Stat.  245;  Mch.  19,  1804,  2 Stat. 
272;  in  reference  to  Texas,  Joint  Resolution,  Mch.  i,  1845,  5 Stat.  797;  Act 
Sept.  9,  1850,  9 Stat.  446,  Feb.  28,  1855,  10  Stat.  617;  In  reference  to  New 
Mexico,  Act.  Mch.  3,  1891,  26  Stat.  854;  in  reference  to  Hawaii,  Joint  Reso- 
lution, July  7,  1898,  Act.  Apr.  30,  1900;  in  refernce  to  Porto  Rico,  Act  Apr. 
12,  1900,  May  I,  1900;  in  reference  to  Philippines,  Act  July  i,  1902,  Mch.  9, 
1902;  in  reference  to  Guano  Islands,  Act  1856,  Rev.  Stat.  5570-5578. 


60 


INTERNATIONAL  LAW  AND  MUNICIPAL  LxVW 


[60 


guarantees  apply  to  incorporated  territory  such  as  Alaska,®’’ 
and  territory  contiguous  to  the  original  colonies,  but  those  con- 
ferring privileges  not  ‘ ‘ natural  rights,  ’ ’ but  of  a technical 
nature  relating  peculiarly  to  the  common  law,  such  as  trial  by 
jury,  or  of  a political  nature  such  as  citizenship,  do  not  apply  to 
inhabitants  of  unincorporated  territory,  such  as  the  Philippines, 
Hawaii,  and  Porto  Rico.®®  None  of  the  constitutional  guarantees 
appear  to  apply  to  territory  temporarily  occupied  and  under 
military  government,®^  or  to  consular  jurisdiction.’’®  It  appears, 
however,  that  the  confiscation  of  property  or  the  deprivation  of 
life  or  liberty  of  persons  without  “due  process  of  law”  in 
actually  acquired  territory,  would  be  prevented  by  constitutional 
guarantees. 

The  United  States  courts  have  held  that  all  public  law 
relating  to  forms  of  government,  revenue  systems,  and  adminis- 
tration is  abrogated  by  change  of  sovereignty,’’^  but  in  a number 
of  cases  the  executive  has  by  order  continued  the  former  admin- 
istrative authorities,  in  which  case  their  acts  are  valid.’’^  The 

®^Rasmussen  vs.  U.  S.,  197  U.  S.  510. 

®®For  this  distinction  and  reference  to  “natural  rights”  see  Justice 
Brown,  in  Downes  vs,  Bidwell,  182  U,  S.  244,  282.  For  its  application  to 
Hawaii,  Hawaii  vs.  Mankichi,  190  U.  S.  197;  to  th©  Philippines,  Dorr  vs. 
U.  S.,  195  U.  S.  138;  and  to  Porto  Rico,  Gonzales  vs.  Williams,  192,  U.  S.  i. 

^^Neeley  vs.  Henkel,  180  U.  S.  109,  122. 

■^^In  re  Ross,  140  U.  S.  453,  464. 

"iHarcourt  vs.  Gaillard,  12  Wheat.  523;  New  Orleans  vs.  U.  S.,  10  Pet. 
602;  Davis  vs.  Concordia,  9 How.  280;  U.  S.  vs.  Vaca,  18  How.  556;  Am. 
Ins.  Co.,  vs.  Canter,  i Pet.  542 ; Pollard  vs.  Hagan,  3 How.  212-225 ; U. 
S.  vs.  Reynes,  9 How.  127 ; U.  S.  vs,  D’Auterine,  10  How.  609 ; Montoult 
vs.  U.  S.,  12  How.  47;  U.  S.  vs.  Yorba,  i Wall.  412;  Stearnes  vs.  U.  S., 
6 Wall.  589;  U.  S.  vs.  Pico,  23  How.  321;  Moore  vs.  Steinbach,  127  U.  S. 
70;  Alexander  vs.  Roulet,  13  Wall.  386;  Mumford  vs.  Wardwell,  6 Wall. 
423.  See  Moore’s  Digest,  i;304-3ii.  For  effect  of  succession  on  Revenue 
Laws,  see  Flemming  vs.  Page,  9 How.  ,603 ; Wirt,  Att.  Gen.,  i op.  483, 
(1821)  ; Cross  vs.  Harrison,  16  How.  164;  President’s  Proclamation,  July 
25,  1901,  and  Insular  Cases,  DeLima  vs.  Bidwell,  182  U.  S.  i ; Downes  vs. 
Bidwell,  182  U.  S.  244;  Dooley  vs.  U.  S.  182  U.  S.  222;  Armstrong  vs.  U. 
S.  182  U.  S.  243;  Huus  vs.  N.  Y.  & Porto  Rico,  Steamship  Co.  182  U.  S. 
392;  Goetz  vs.  U.  S.  182  U.  S.  221;  Crossman  vs.  U.  S.  182  U.  S.  221; 
Fourteen  Diamond  Rings,  103  U.  S.  176;  Dooley  vs.  U.  S.  183  U.  S.  151. 
See  Moore’s  Digest,  i;3ii-332. 

Resolution,  July  7,  1898,  in  reference  to  Hawaii;  War  Dept. 
Circular,  Feb.  1899,  in  reference  to  territory  und^r  military  government; 
act  May  i,  1900,  in  reference  to  Porto  Rico.  See  Ely’s  Adm.  vs.  U.  S.  171 
U.  S.  220,  230,  (1898).  Moore’s  Digest,  i ; 306-308. 


61] 


IN  TIME  OP  PEACE 


61 


system  of  private  law  in  force  has,  however,  been  held  to  con- 
tinue until  specifically  altered  by  statute.  It  is  upon  this  prin- 
ciple that  the  courts  of  all  of  the  states,  originally  British  colonies 
or  settled  from  them,  have  continued  to  apply  the  common  law,^^ 
while  those  of  Louisiana  and  Texas  have  applied  the  French  and 
Spanish  systems  of  law  respectively.  The  application  of  the 
English  law  of  admiralty  in  federal  courts  has  been  based  on  a 
like  principle.’’^  The  courts  have  applied  the  same  principle  to 
other  acquisitions  of  territory  such  as  Florida,  New  Mexico,  and 
the  Spanish  cessions  of  1898.'^^ 

The  inviolability  of  existing  contracts  and  property  rights 
of  inhabitants  of  acquired  territory  has  been  generally  upheld 
in  reference  to  obligations  owed  by  the  former  state  itself  to  such 
inhabitants.  Inhabitants  as  well  as  persons  of  foreign  states 
benefit  by  the  acquiescence  of  the  new  sovereign  in  its  duty  to 
assume  the  public  burdens  attached  to  the  territory."^®  If  a 

Mortimer  vs.  N.  Y.  Elevated  R.  R.  Co.,  6 N.  Y.  S.  89,  (1889), 
Scott,  III,  a claim  that  Dutch  law  rather  than  English  should  apply  in  ref- 
erence to  the  portion  of  New  York  City  originally  occupied  by  the  Dutch 
was  denied.  The  British  claim  based  on  Cabot’s  discovery  prior  to  Dutch 
occupancy  established,  in  the  view  of  the  court,  the  common  law.  The 
court  admitted  that  modern  publicists  hold  that  discovery  not  followed 
by  occupation  is  insufficient  to  give  title  to  new  territory,  but  thought 
that,  by  the  international  law  of  that  time,  Cabot’s  claim  was  valid.  As 
an  additional  reason  for  its  opinion  the  court  seemed  to  cast  some  doubt 
on  the  principle  that  succession  does  not  alter  the  private  law.  Thus  it 
held  that  even  if  Cabot’s  claim  were  not  sufficient  to  establish  a prior  Brit- 
ish title,  the  Dutch  law  would  have  been  abrogated  by  the  British  conquest 
and  acquisition  in  1664.  The  court,  however,  suggested  that  the  charter 
of  Charles  II,  of  1664,  specifically  established  the  common  law.  The  in- 
tervention of  such  an  act  of  state  would  clearly  bind  municipal  courts, 
even  if  contrary  to  international  law.  It  would  seem  that  prescription 
might  have  furnished  sufficient  basis  for  maintaining  the  predominance  of 
English  law  in  this  case,  but  it  does  not  seem  to  have  been  relied  upon. 

■^^Thirty  Hogshead  of  Sugar  vs.  Boyle,  9 Cranch  191,  (1815). 

"^sLouisiana,  see  Keene  vs.  McDonough,  8 Pet.  308;  U.  S.  vs.  Turner, 
II  How.  663;  Florida,  see  Am.  Ins.  Co.  vs.  Canter,  i Pet.  542;  New  Mex- 
ico, U.  S.  vs.  Power’s  Heirs,  ii  How.  570,  U.  S.  vs.  Heirs  of  Rillieux,  14 
How.  189;  Leitsendorfer  vs.  Webb,  20  How.  176.  In  Chicago  Pac.  R.  R.  Co. 
vs.  McGlenn,  114  U.  S.  542,  the  state  law  was  held  to  apply  in  territory  do- 
nated by  the  state  of  Kansas  to  the  Federal  Government  for  a peniten- 
tiary. See  Mortimer  vs.  N.  Y.  Elevated  R.  R.  Co.  6 N.  Y.  S.  89,  (1889), 
Scott,  III,  note  73  above.  See  also  U.  S.  vs.  Chaves,  159  U.  S.  452,  (1895)  ; 
Strother  vs.  Lucas,  12  Pet.  410. 

76Supra,  p.  57. 


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INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[62 


definite  act  of  the  political  department  of  government  repudiates 
such  liability,  there  is  no  recourse  for  the  inhabitants,^^  although 
foreigners  entitled  to  similar  credits  can  still  resort  to  diplomatic 
protest. 

Where  the  obligation  is  one  between  private  parties, 
treaties  generally  have  required  inviolability,  and  the  courts 
have  emphatically  maintained  that  the  same  doctrine  holds  in  the 
absence  of  treaty.'^®  Thus  Chief  Justice  Marshall,  in  upholding 
a real  estate  right  in  Florida  based  on  a grant  by  Spain,  said,  ‘ ‘ It 
is  very  unusual  even  in  cases  of  conquest  for  the  conqueror  to  do 
more  than  to  displace  the  sovereign  and  assume  domain  over  the 
country.  The  modern  usage  of  nations,  which  has  become  law, 
would  be  violated,  that  sense  of  justice  and  of  right  which  is 
acknowledged  and  felt  by  the  whole  civilized  world  would  be 
outraged  if  private  property  should  be  generally  confiscated  and 
private  rights  annulled.  The  people  change  allegiance,  their  rela- 
tions to  their  ancient  sovereign  are  dissolved,  but  their  relations 
to  each  other  and  their  right  of  property  remain  undisturbed.  ’ 

■^■^West  Rand  Central  Gold  Mining  Co.  vs.  Rex.  L.  R.  2 K.  B.  301,  401- 
2,  (1905),  and  article  by  J.  Westlake,  Law  Quar.  Rev.,  22;  14-26.  In 
this  case  it  was  held  that  an  “act  of  state”  barred  the  right  of  an  inhabi- 
tant of  the  Boer  Republic  to  recover  debts  owed  him  by  that  republic, 
from  Great  Britain,  after  succession. 

^sWilcox.  vs.  Henry,  i Dali.  69,  (Pa.,  1782)  ; U.  S.  vs.  Soulard,  4 Pet. 
511,  (1830)  ; U.  S.  vs.  Percheman,  7 Pet.  51,  (1833)  ; U.  S.  vs.  Arredondo, 
6 Pet.  691 ; U.  S.  vs.  Clarke,  8 Pet.  436;  U.  S.  vs.  Clarke,  16  Pet.  231;  U. 
S.  vs.  Repentigny,  5 Wall.  212,  (1866)  ; U.  S.  vs.  Hansen,  16  Pet.  196, 
Delassus  vs.  U.  S.  6 Pet.  117,  133,  (1835)  ; Mitchell  vs.  U.  S.  9 Pet.  71 1, 
(1835)  ; U.  S.  vs.  Yorba,  i Wall.  412;  Townsend  vs.  Greeley,  5 Wall.  326; 
U.  S.  vs.  Anguisola,  i Wall.  352;  Airhart  vs,  Massieu,  98  U.  S.  491 ; Coffee 
vs.  Grover,  123  U.  S.  i,  9,  (1887)  ; Ely’s  Adm.  vs.  U.  S.  171  U.  S.  220,  223, 
(1898)  ; See  Moore’s  Digest  i;  414-427.  For  citation  of  further  cases  see 
Scott,  cases,  97  note.  By  statute  of  i860  congress  authorized  the  courts  to 
settle  land  claims  near  the  Sault  Ste.  Marie  based  on  a grant  of  the  King 
of  France  in  1750,  according  to  international  law,  the  law  of  the  country 
from  which  the  claim  was  derived,  principles  of  justice  and  stipulations 
of  treaties.  Under  this  act  the  court  held  that  a grant  of  land  on  certain 
conditions  of  occupancy  was  lost  upon  the  grantee’s  failure  to  fulfill  these 
conditions  after  leaving  the  country  because  of  Great  Britain’s  succession 
in  1760.  The  opinion  of  both  the  original  grantee  and  his  son  that  the 
claim  was  lost,  and  the  failure  to  advance  a claim  until  seventyfive  years 
after  the  grant,  confirmed  the  court’s  opinion  that  the  claim  was  without 
merit.  See  U.  S.  vs.  Repentigny,  3 Wall.  21 1,  (1866),  Scott.  98. 

S.  vs.  Percheman,  7 Pet.  51,  86,  (1833). 


63] 


IN  TIME  OF  PEACE 


63 


This  same  principle  has  been  applied  in  cases  of  succession 
to  insurrectionary  and  military  governments.  Private  rights  and 
obligations,  valid  under  the  law  of  the  previous  defacto  govern- 
ment, have  been  enforced.®®  Neither  public  nor  private  obliga- 
tions will,  however,  be  held  as  valid  if  they  were  contracted  in 
support  of  armed  resistance  to  the  United  States,  or  in  rebellion. 
Thus  the  courts  have  held  that  all  acts  of  the  Confederate  govern- 
ment of  1861  to  1865  were  void.  No  rights  could  be  derived  from 
its  laws  because  its  very  existence  was  rebellion  against  the  United 
States.  Acts  of  the  states  in  rebellion,  however,  might  be  valid 
if  not  in  direct  aid  of  the  insurrection.®^  Acts  of  the  Confederate 
congress  accepted  by  them  and  enforced  by  their  law,  such  for 
instance  as  acts  requiring  the  acceptance  of  Confederate  paper 
currency,  were  valid.  Thus  the  United  States  courts,  after  the 
war,  enforced  contracts  for  the  payment  of  Confederate  paper 
for  an  equivalent  value  at  the  time  the  contract  was  made,  in 
United  States  money.®^ 

To  summarize,  the  United  States  has  generally  by  treaty 
obligated  itself  to  permit  the  inhabitants  of  acquired  territory  to 
retain  their  old  allegiance  if  they  wish.  Treaties,  statutes  and 
constitutional  guarantees  have  insured  them  the  usual  immunities 
of  citizens.  Treaty  guarantees  and  the  doctrine  that  courts  apply 
international  law  have  insured  the  retention  of  the  existing  sys- 
tem of  private  law  until  changed  by  express  act  of  the  legislature, 
and  the  inviolability  of  private  property  rights  unless  they  were 
directly  involved  in  the  promotion  of  hostilities  or  rebellion. 
Statutes  and  executive  orders  have  occasionally  retained  portions 
of  the  previous  system  of  public  law  and  administration,  but  the 
courts  have  affirmed  that  public  law  is  abrogated  by  succession 
unless  express  act  of  the  sovereign  intervenes. 

®°Succession  to  British  Military  Govt,  of  Castine,  Me.,  1814,  U.  S.  vs. 
Rice,  4 Wheat.  246,  (1819)  ; to  confederate  De  Facto  Govt,  of  Southern 
states,  1861-1865,  Thorington  vs.  Smith,  8 Wall,  i,  9-1 1,  (1868)  ; The  Ven- 
ice, 2 Wall.  258;  Hanauer  vs.  Woodruff,  15  Wall.  448;  Bissell  vs.  Hey- 
ward, 96  U.  S.  580;  Delmar  vs.  Insurance  Co.,  14  Wall.  661;  Horn  vs. 
Lockhart,  17  Wall.  570,  580;  Baldy  vs.  Hunter,  171  U.  S.  388,  392,  (1890)  ; 
Sprott  vs.  U.  S.,  20  Wall.  459,  (1874).  See  Moore’s  Digest,  i ;45-8o. 

®iOn  the  distinction  between  acts  of  the  Confederate  government  and' 
of  the  state  in  rebellion,  see  Sprott  vs.  U.  S.  20  Wall.  459,  (1874)  i Williams 
vs.  B'ruffy,  96  U.  S.  176,  191-2,  (1877)  ; Dewing  vs.  Perdicaries,  96  U.  S. 
193,  (1877)  ; Ford  vs.  Surget,  97  U.  S.  594,  604,  (1878).  See  Moore’s  Di- 
gest, I ; 54-60. 

®2Thorington  vs.  Smith,  8 Wall,  i,  (1868). 


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[64 


SERVITUDES. 

There  have  been  at  different  times  claims  that  certain  por- 
tions of  territory  are  subject  to  servitudes  or  rights  of  use  by 
foreign  powers  and  persons,  which  are  beyond  the  authority  of  the 
territorial  sovereign  to  abridge.  Thus  it  has  been  said  that  inter- 
national rivers  and  canals  are  owned  by  adjacent  states  subject 
to  the  rights  of  free  commerce  for  all;  that  marginal  seas  and 
straits  are  free  to  the  innocent  passage  of  foreign  vessels,  that  the 
territorial  sovereign’s  control  of  ports  is  subject  to  the  right  of 
asylum  for  vessels  in  case  of  imminent  danger  from  stress  of 
weather  or  other  cause ; that  certain  portions  of  territory  are  sub- 
ject to  the  right  of  innocent  passage  of  foreign  troops,  and  even 
that  all  foreign  territory,  especially  frontiers,  is  held  by  the  ter- 
ritorial sovereign  subject  to  the  right  of  foreign  states  to  enter  the 
same  for  the  purpose  of  enforcing  order  when  self  defense 
demands.®^  The  United  States  for  a long  time  maintained  that 
British  territorial  waters  about  Newfoundland  were  subject  to 
prescriptive  fishing  rights  of  United  States  fishermen. 

If  there  are  any  such  inalienable  servitudes  they  clearly  put 
the  territorial  sovereign  under  a duty  of  acquiescence.  By  the 
award  of  the  Hague  arbitration  of  1910  between  Great  Britain 
and  the  United  States  it  was  held  that  servitudes  were  contrary 
to  the  doctrine  of  sovereignty  maintained  by  international  law, 
and  could  be  recognized  ^ ‘ only  on  the  express  evidence  of  interna- 
tional contract ; ’ ’ hence  the  American  claim  that  prescriptive 
fishing  rights  on  Newfoundland  territorial  waters  constituted  a 
legal  servitude  in  which  Great  Britain  must  acquiesce,  was  of 
no  avail.®^ 

(1)  It  seems  that  possibly  an  exception  to  this  broad 
statement  should  be  made  in  the  case  of  boundary  rivers.  In  that 
case  the  right  of  free  commerce  could  scarcely  be  unilaterally 
restricted,  and  is  universally  recognized.  United  States  courts 
have  recognized  the  principle  by  holding  that  vessels  traversing 
American  waters  of  international  rivers  cannot  be  seized  for 

®3PIeas  of  self  defense  were  used  to  justify  violations  of  Spanish  and 
Mexican  territory  in  pursueing  Indian  marauders,  and  the  landing  of  troops 
in  foreign  ports  to  protect  United  States  citizens  as  in  the  recent  (1914) 
case  of  Vera  Cruz.  See  Moore’s  Digest,  2 -,400-425.  On  servitudes  gener- 
ally see  Hall,  Int.  Law,  4th  ed.,  p.  106;  Moore’s  Digest,  2;  18. 

®^See  text  of  this  decision.  Am.  Jour.  Int.  Law,  4:948,  958,  (1910), 
Editorial  Comment,  Ibid.  8:859,  (1914)  : also  article  C.  P.  Anderson,  The 
Final  Outcome  of  the  Fisheries  Arbitration,  Ibid.  7:1,  9,  (1913). 


65 


65]  IN  TIME  OF  PEACE 

violation  of  municipal  statutes  when  bound  for  a foreign  port.®® 

( 2 ) The  right  of  asylum  for  vessels  in  distress  has  also  been 
affirmed  in  United  States  law.®®  The  courts  have  refused  to  con- 
demn vessels  forced  by  stress  of  weather  into  ports  closed  by 
statute  or  blockaded  by  right  of  war.®^  The  right  of  asylum, 
however,  is  subject  to  the  provision  that  the  vessel,  unless  a 
public  one,  shall  be  subject  to  the  local  jurisdiction.  It  can 
therefore  scarcely  be  said  that  the  privilege  constitutes  a servitude 
upon  the  port  waters. 

Most  of  these  so-called  servitudes  are  not  maintainable  by 
modern  international  law.  The  United  States  has  diplomatically 
and  judicially  affirmed  its  absolute  right  to  sovereignty  over  its 
entire  territory.®® 

(3)  Servitudes  conceded  by  treaty  are,  however,  clearly 
recognized  and  certainly  impose  a duty  of  acquiescence  upon  the 
country.  The  United  States  has  specifically  accorded  by  treaty 
the  right  to  certain  countries  of  free  commerce  in  international 
rivers®®  and  in  the  Panama  canal,®®  the  right  of  asylum  in  ports 
to  either  private  or  public  vessels  in  case  of  “stress  of  weather 
or  pursuit  of  pirates  or  enemies,”®^  the  right  of  using  troops 

®^The  Appollon,  g Wheat.  362,  (1824). 

*®Cushmg,  Att.  Gen.  7 op.  122,  (1855)  ; The  Santissima  Trinidad,  7 
Wheat.  283;  Moore’s  Digest,  7;982-985.  Great  Britain  treated  Jefferson’s 
proclamation,  prohibiting  hospitality  to  British  warships  in  1807,  after  the 
Leopard  and  Chesapeake  affair,  as  a breach  of  international  law.  See 
Moore’s  Digest,  611035. 

®^The  Nuestra  Senora  de  Regia,  17  Wall.  30;  Moore’s  Digest,  2;339 
et  seq. 

®®Schooner  Exchange  vs.  McFaddon,  7 Cranch  116-136,  (1812).  See 
Moore’s  Digest,  214-16. 

®®Treaties  with  Great  Britain,  1783,  art.  8,  Malloy,  p.  589;  1842,  art.  3, 
p.  643;  1846,  art.  2,  p.  657;  1854-1866,  art.  4,  p.  671;  1871,  art.  26,  p.  711, 
decreeing  free  navigation  in  the  Mississippi,  St.  Lawrence,  St.  John,  Yu- 
kon, Stikine,  and  Porcupine.  With  Mexico,  1848,  art.  4,  7,  p.  iiii;  1853, 
art.  4,  p.  1123,  decreeing  free  navigation  in  the  Colorado,  Gila,  and  Bravo. 

^^Treaty  with  Great  Britain,  1901,  art.  3,  Malloy,  p.  783. 

®iThe  United  States  has  concluded  thirty-one  treaties  with  twenty- 
five  countries  in  which  this  privilege  is  specified.  Only  two  appear  to  be  in 
force,  Bolivia,  1858,  art.  9,  Malloy,  p.  117;  Prussia,  1799-1810,  revived  1828, 
art.  18,  p.  1492.  The  privilege  of  free  entry  to  ports  is  now  so  universally 
acknowledged  that  treaty  stipulations  are  not  necessary. 


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[66 


on  its  territory  in  pursuit  of  marauding  Indians^-  and  the  right 
to  establish  submarine  cable  terminals.®^  The  usual  principle 
that  treaties  are  enforceable  law  tends  to  enforce  these  duties, 
but  acts  of  congress  may  always  override  such  treaty  privileges 
so  far  as  municipal  law  and  the  controlling  power  of  municipal 
courts  are  concerned.^^ 

®2Protocols  with  Mexico,  1882  to  1896,  by  which  Mexico  was  permitted 
to  pursue  marauding  Indians  in  United  States  territory.  Malloy,  p.  1144- 

1177. 

^^Special  permits  with  rules  have  generally  been  issued  by  the  presi- 
dent to  companies  desiring  to  land  cables.  On  the  power  of  the  president  to 
give  such  permits  see  Richards,  Acting  Att.  Gen.,  22  op.  13,  (1897)  ; Griggs, 
Att.  Gen.,  22  op.  408,  (1899).  See  Moore’s  Digest,  21452-466. 

®^For  a recent  discussion  of  treaty  servitudes  or  international  con- 
tracts, see  Aix-la-Chappelle  Maestricht  R.  R.  Co.  vs.  Thewis,  Dutch  Govt, 
intervener,  Apr.  21,  1914,  a German  case,  reported  Am.  Jour.  Int.  Law., 
1914,  8;858,  907.  In  this  case  a portion  of  Prussian  territory  was  held  to 
be  subject  to  a servitude  by  which  a Dutch  Railway  Company  had  the  right 
to  operate  under  Dutch  law.  Germany  claimed  that  a protocol  of  Mch.  ii, 
1877,  with  Spain  created  a servitude  for  her  benefit  upon  the  Zulu  Archi- 
pelago, which  remained  after  cession  of  the  Archipelago  to  the  United 
States.  The  United  States  refused  to  recognize  this  claim.  See  Moore’s 
Digest,  5;35i. 


CHAPTER  IV.  OBLIGATIONS  OF  PREVENTION. 


INTRODUCTORY 

The  municipal  laws  designed  to  insure  the  abstention  of  the 
government  from  illegal  acts  outside  of  its  territory,  and  its 
acquiescence  in  recognized  exemptions  from  its  complete  control 
of  its  own  territory  have  been  considered.  But  its  duties  under 
international  law  do  not  stop  here.  The  government  is  respon- 
sible for  the  acts  of  its  officers  and  its  civil  population.  It  is 
therefore  under  an  obligation  to  take  positive  measures  to  pre- 
vent contraventions  of  international  law  by  such  persons., 

The  duties  of  prevention  bear  a relation  to  duties  of  absten- 
tion and  acquiescence.  The  responsibility  of  the  government  for 
its  subjects  extends  no  further  than  its  own  duties.  It  need  pre- 
vent nothing  which  it  is  not  itself  bound  to  abstain  from  author- 
izing. In  fact  it  does  not  extend  so  far.  There  are  many  acts 
of  its  subjects  which  the  government  is  not  responsible  for  and 
which  it  need  not  prevent,  but  which  it  must  itself  abstain  from. 
This  is  especially  evident  in  the  law  of  neutrality.  A neutral 
government  need  not  prevent  the  export  of  arms  by  its  subjects 
to  belligerents,  but  it  must  itself  abstain  from  such  commerce. 
In  the  law  of  peace  the  same  principle  applies.  The  government 
must  abstain  from  authorizing  the  use  of  force  outside  of  its  ter- 
ritory or  intervening  in  the  affairs  of  foreign  governments,  but 
it  is  not  responsible,  if  its  subjects  do  such  acts  abroad,  without 
authorization.^  For  acts  within  its  territory  the  responsibility 
is  much  greater  and  hence  also  is  tbe  duty  of  prevention.  For 
acts  of  public  officers  either  in  its  territory  or  abroad  the  respon- 
sibility of  the  government  is  much  greater  than  in  the  case  of 
private  persons,  and  hence  the  duty  of  prevention  is  more 
arduous.  We  may  therefore  conveaiently  consider  the  subject 
in  reference,  (1)  to  agencies  of  government,  and  (2)  to  the  civil 
population.  Although  the  international  duties  imposed  by 

^See  Moore’s  Digest,  6;787.  The  United  States  does  recognize  a 
certain  responsibility  for  acts  of  its  citizens  in  promoting  insurrection 
against  states  in  which  it  has  consular  jurisdiction,  even  when  committed 
abroad.  The  immunity  of  United  States  citizens  from  local  jurisdiction 
in  such  cases  is  accountable  for  this  exception  to  the  general  rule.  See 
Rev.  Stat.  sec.  4090,  4102.  Infra  p.  74. 

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[68 


treaties  are  considered  in  connection  with  corresponding  duties 
of  international  law,  the  general  duty  of  (3)  preventing  infrac- 
tions of  treaty  provisions  may  conveniently  be  considered  here. 

ACTS  BY  AGENCIES  OF  GOVERNMENT. 

(1)  The  agencies  of  government  which  come  in  contact 
with  foreign  nations  in  time  of  peace  are  the  navy,  the  diplomatic 
service  and  the  consular  service.  International  law  requires  that 
naval  vessels  obey  local  regulations  on  entering  foreign  jurisdic- 
tion, abstain  from  prohibited  acts,  and  exchange  salutes  on 
meeting  foreign  public  vessels.  Special  duties,  when  enjoying 
the  hospitality  of  ports,  such  as  refusing  asylum  to  criminals, 
slaves  and  political  refugees,  are  sometimes  required  by  treaty. 
These  duties  are  specified  in  the  permanent  navy  regulations 
and  naval  instructions-  issued  under  authority  of  the  president, 
and  are  enforced  by  the  executive  control  exercised  over  the  navy 
at  all  times  by  the  president  as  commander-in-chief,  through  the 
navy  department,  and  the  authority  of  courts  martial  in  enforc- 
ing the  statutory  articles  for  the  government  of  the  navy.^ 

A case  involving  the  enforcement  of  navy  regulations  arose 
in  1893.  During  the  naval  revolt  in  Brazil,  Commodore  Stanton, 
an  American  naval  commander,  on  entering  the  port  of  Rio 
Janeiro,  exchanged  visits  and  fired  salutes  in  honor  of  the  naval 
insurgents.  The  Brazilian  government  protested  and  the  navy 
department  on  investigation  found  that  Commodore  Stanton  had 
violated  article  115  of  the  Navy  Regulations  of  1893,  providing 
that  “no  salute  shall  be  fired  in  honor  of  any  nation  * * 

not  formally  recognized  by  the  government  of  the  United  States.” 
As  the  offense  was  due  to  mistake  rather  than  intent  the  depart- 
ment, although  holding  that  Commodore  Stanton  had  committed 
“a  grave  error  of  judgment,”  restored  him  to  his  command."^ 
Armed  forces  are  forbidden  passing  into  foreign  territory 
without  license,  and  on  such  occasions  continue  subject  to  mili- 
tary commissions,  and  army  officers  are  required  to  observe  cer- 
tain formalities  in  dealing  with  representatives  of  foreign  gov- 
ernments.® 

2Navy  Regulations,  1913  sec.  1502,  1633-1634,  1641-1651  under  authority 
of  Rev.  Stat.  sec.  1547. 

^Rev.  Stat.  sec.  1624. 

^See  Moore’s  Digest,  1 1240-241. 

^Dig.  op.  Judge.  Ad.  Gen.  1912,  C.  R.  Howland  ed.  pp.  90,  106.  Army 
Regulations,  1913,  sec.  398;  407;  889,  ch.  3. 


69] 


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69 


(2)  Diplomatic  officers  are  likewise  subjected  to  duties 
while  in  foreign  countries.  International  law  requires  diplo- 
matic officers  to  observe  diplomatic  etiquette,  in  making  visits, 
being  admitted  to  audiences  and  in  matters  of  precedence.  It 
requires  abstention  from  public  addresses  or  expressions  of 
opinion  likely  to  be  offensive  to  tlie  state  to  which  the  minister 
is  accredited,  and  it  seems  that  modern  international  law 
requires  the  minister  to  prevent  his  residence  being  used  as  a 
place  of  asylum  by  fugitives  from  justice.  This  duty  is  also 
specified  in  a number  of  treaties.  In  exchange  for  his  immunity 
from  local  jurisdiction  the  diplomatic  officer  is  also  required  to 
be  especially  strict  in  his  observance  of  local  laws.  These 
duties  are  specified  with  considerable  definiteness  in  the  Instruc- 
tions to  Diplomatic  Officers®  issued  by  the  president  under 
authority  of  statute,^  and  a number  of  them  are  specified  in  the 
statutes  themselves.  Thus  statutes  specifically  forbid  ministers 
to  correspond  or  give  information  relating  to  the  affairs  of  the 
foreign  government  to  which  they  are  accredited  to  any  but  the 
proper  United  States  officials,®  and  specify  a number  of  matters 
relating  to  costume,  absention  from  post,  correspondence,®  etc. 

The  permanent  instructions  and  statutes  as  well  as  special 
instructions  issued  by  the  president  or  secretary  of  state^®  are 
enforced  by  executive  control  of  the  ministers’  tenure  of  office, 
requirements  of  bonds  on  acceptance  of  mission,  and  criminal 
liability  for  misconduct  in  office. 

By  the  constitution  the  president  with  the  advice  and  con- 
sent of  the  senate  has  the  power  of  appointing  diplomatic  offi- 
cers,^^  although  special  agents  have  been  appointed  by  the  presi- 
dent alone.^^  By  statute  such  appointments  (or  rather  salaries 
for  appointees)  are  limited  to  citizens  of  the  United  States,^® 
and  provision  has  been  made  to  prevent  the  performance  of  diplo- 
matic functions  by  unofficial  representatives  by  making  such  acts 
criminal.^^ 

^Instructions  to  Diplomatic  Officers,  1897,  sec.  1-136. 

■^Rev.  Stat.  sec.  1752. 

8Act  Aug.  18,  1850.  Rev.  Stat.  1751. 

^Rev.  Stat.  sec.  1674-1688. 

i®See  Moore’s  Digest,  5;565. 

^^Constitution,  Art.  2 sec.  2,  Cl.  2. 

^^See  Moore’s  Digest,  4;4i2. 

i®Rev.  Stat.  1744;  Moore’s  Digest,  4:457. 

i^Act  Jan.  30,  1799;  Rev.  Stat.  5335.  This  act  resulted  from  the 
efforts  of  Dr.  Geo.  Logan,  who  attempted  on  his  own  responsibility  a 


70 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[70 


Ministers  are  required  by  statute  to  give  bond  for  the  faith- 
ful performance  of  their  duties,  and  it  has  been  held  that  the 
appointment  is  not  complete  until  the  execution  of  this  bond.^'^ 
Diplomatic  officers  are  subject  to  special  orders  of  the  president 
generally  transmitted  through  the  department  of  state,  and  the 
president  may  recall  such  officers  at  discretion.  By  statute  diplo- 
matic officers  have  been  made  responsible  for  negligence  and  mis- 
conduct in  office.^®  Criminal  prosecution  in  United  States  courts 
for  violation  of  statutory  duties  would  therefore  seem  possible. 

(3)  International  law  imposes  duties  upon  consuls  while  in 
service  in  foreign  territory.  They  may  not  enter  upon  their 
functions  until  they  have  received  an  exequatur  from  the  govern- 
ment to  which  they  are  assigned,  and  they  are  bound  by  its 
terms.  They  must  observe  the  local  law,^^  although  by  treaty 
they  are  generally  exempted  from  military  and  jury  service, 
etc.  Consulates  are  frequently  declared  immune  from  local 
jurisdiction  by  treaty,  but  it  is  also  a rule  of  most  of  these 
treaties  that  the  consul  must  refuse  to  give  asylum  to  persons 
sought  by  local  authorities.^® 

These  duties  of  consuls  are  specified  in  detail  in  the  Consular 
regulations  issued  by  the  president  under  authority  of  statute,^® 
and  a number  of  them  are  specified  in  the  statutes  themselves. 
These  regulations  and  statutes  are  enforced  through  the  executive 
control  exercised  over  consuls  by  the  president  through  the 
department  of  state,  by  requirements  of  bonds  and  by  amen- 
ability to  criminal  prosecutions  in  the  United  States  for  acts  done 
abroad. 

Consuls  are  appointed  by  the  president  with  the  advice  and 
consent  of  the  senate, and  it  appears  that  inferior  consular 

mission  of  conciliation  in  France  in  1798.  It  is  known  as  the  “Logan  Act.” 
There  have  been  no  prosecutions  under  it.  See  Moore’s  Digest,  41448- 
450.  Reference  is  made  to  the  act  in  U.  S.  vs.  Craig,  28  Fed.  Rep.  795, 
801 ; American  Banana  Co.,  vs.  United  Fruit  Co.,  213  U.  S.  347,  356. 

i^Williams  vs.  U.  S.  23  Ct.  Cl.  46;  Moore’s  Digest,  41457.  On  liability 
of  bondsman,  see  U.  S.  vs.  Bee,  4 C.  C.  A.  219. 

i®Act.  June  27,  i860.  Rev.  Stat.  4110;  See  also  Rev.  Stat.  sec.  1734; 
act  Dec.  21,  1898,  30  Stat.  771. 
i^See  Moore’s  Digest,  5;698. 
i^Supra,  p.  54. 

i^See  Consular  Regulations,  1896.  Duties  under  International  law, 
sec.  71-76;  under  treaties,  77-93;  under  authority  of  Rev.  Stat.  sec.  1752. 
20Rev.  Stat.  sec.  1751-1752;  1716-1737;  Act  June  30,  1902,  32  Stat.  547. 
^^Constitution,  art.  2,  sec.  2;  Cl.  2. 


71] 


IN  TIME  OP  PEACE 


71 


officers  may  be  appointed  by  the  president  alone  or  even  by 
diplomatic  or  superior  consular  officers.--  According  to  a statute 
of  1906,^^  only  American  citizens  may  be  appointed  to  positions 
with  a salary  of  $1,000  a year  or  more.  A limited  application 
of  the  civil  service  principle  in  making  appointments  has  been 
put  into  operation  by  executive  order.-^  Consuls  are  subject  to 
special  instructions  of  the  department  of  state  and  the  president, 
and  may  be  removed  at  the  president’s  discretion. 

Consuls  are  required  by  statute  to  give  bond  for  the  faithful 
performance  of  their  duties  and  they  are  subject  to  criminal 
prosecution  in  the  United  States  courts  for  specified  acts  com- 
mitted abroad  such  as  accepting  appointments  as  administrator 
without  giving  bond  or  account  of  money,  exacting  excessive 
fees,  making  false  oath,  neglecting  duty  toward  seamen,  making 
false  certification  of  property,^®  etc.,  as  well  as  for  general  mis- 
conduct in  office.^® 

The  international  duties  of  these  governmental  agents  are 
enforced  largely  through  methods  of  executive  control.  The 
executive  orders  and  instructions  prescribing  the  conduct  of  such 
officers  are  specifically  authorized  by  statute  and  are  to  be 
regarded  as  law^'^  which  may  be  effectively  enforced  through  the 
appointment  and  removal  power  of  the  executive.  The  require- 
ments of  bonds,  the  amenability  of  naval  officers  to  courts  martial, 
and  of  consular  and  diplomatic  officials  to  the  criminal  jurisdic- 
tion of  American  courts  for  specified  statutory  offenses,  add  fur- 
ther sanction  to  the  enforcement  of  these  duties. 

ACTS  BY  THE  CIVIL  POPULATION. 

Governments  are  not  generally  responsible  for  acts  by  pri- 
vate citizens  committed  abroad  or  on  the  high  seas.-®  Private 

22Act.  Apr.  5,  I90|6,  sec.  2,  3;  Consular  Regulations,  1888,  sec.  8,  7; 
1896;  sec.  21.  See  U.  S.  vs.  Eaton,  169  U.  S.  331.  Moore’s  Digest,  5;  8-9. 

23Act  Apr.  5,  1906,  sec.  5;  Moore’s  Digest,  5;  12. 

24Ex.  Ord.  June  27,  1906;  Dec.  12,  1906;  Apr.  20,  1907;  Dec.  23,  1910. 
under  authority  Rev.  Stat.  sec.  1753,  Act  Apr.  5,  1906,  and  May  ii,  1908. 
See  Information  Regarding  Appointments  and  Promotions  in  the  Consular 
Service  of  the  United  States,  Govt.  Printing  Office. 

25Rev.  Stat.  sec.  1716,  1728,  1734-1737;  act  Dec.  21,  1898,  30  stat.  771; 
act  June  30,  1902,  32  stat.  547. 

26 Act  June  22,  i860,  rev.  stat.  sec,  4110;  Moore’s  Digest,  2)267,  note. 

27See  Rev.  Stat.  sec.  1752.  On  legal  status  of  executive  orders  and 
regulations,  see  J.  A.  Fairlie,  The  National  Administration  of  the  United 
States  of  America,  N,  Y.  1905,  p.  27. 

2®See  Moore’s  Digest,  6)787. 


72  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [72 

individuals  in  such  cases  are  amenable  to  the  jurisdiction  of  the 
courts  of  the  foreign  government,  or  if  they  commit  piracy  on  the 
high  seas  to  those  of  any  government  catching  them.  They  may 
be  punished,  but  their  government  can  not  be  held  responsible 
for  their  acts,  and  no  reparation  may  be  demanded.  This  prin- 
ciple does  not  apply  in  countries  where  citizens  are  exempt  from 
local  jurisdiction  by  treaty,  and  consequently  in  such  places  the 
responsibility  of  the  government  of  nationality  continues,  to  a 
limited  extent. 

There  has  been  some  difference  of  opinion  as  to  whether  a 
state  is  responsible  for  the  acts  of  private  citizens  even  within 
its  territory,  but  the  doctrine  of  responsibility  appears  to  be 
established.^®  A state  is  supposed  to  maintain  order  and  protect 
life  and  property  within  its  territory.  It  therefore  is  liable  to 
make  reparation  for  failure  to  do  so  if  such  failure  results  in  an 
injury  to  a foreign  state  or  its  citizens. 

This  principle  is  subject  to  exceptions.  Where  insurrec- 
tions are  of  considerable  magnitude  or  where  the  country  is 
invaded  by  hostile  forces,  incidental  injury  to  aliens  is  beyond 
the  power  of  the  government  to  prevent,  and  the  government  is 
therefore  not  responsible.  The  general  principle,  however,  is 
as  stated,  and  clearly  implies  a duty  on  the  part  of  the  state  to 
prevent  acts  injurious  to  foreign  states  or  persons  being  com- 
mitted by  its  civil  population. 

The  subject  may  be  considered  under  the  three  heads,  (1) 
injury  to  foreign  states,  (2)  injury  to  resident  foreign  public 
officers,  (3)  injury  to  alien  private  persons. 

(1)  International  law  requires  a government  to  prevent 
persons  within  its  jurisdiction  doing  acts  directly  injurious  to 
foreign  states.  The  supreme  court  of  the  United  States  has  held^® 
that  the  measure  of  this  duty  is  ‘‘due  diligence”  and  that  as 
foreign  relations  are  exclusively  in  the  hands  of  the  national  gov- 
ernment, legislation  punishing  acts  directed  against  foreign  gov- 
ernments is  warranted  under  the  constitutional  authority  to 
‘ ‘ define  and  punish  * * offenses  against  the  law  of 
nations.”®^  By  treaty  the  United  States  has  recognized  its  obli- 
gation to  prevent  injury  to  adjacent  states  by  hostile  bands  of 

29See  article  by  Julius  Goebel,  Jr.,  The  International  Responsibility 
of  states  for  injuries  sustained  by  aliens  on  account  of  mob  violence, 
insurrection  and  civil  war.  Am.  Jour,  of  Int.  Law.  8;8o2,  Nov.  1914. 

3®U.  S.  vs.  Arjona,  120  U.  S.  479,  (1887),  Moore’s  Digest,  i ;6i. 

^^Constitution,  art.  i,  sec.  8,  cl.  10. 


73] 


IN  TIME  OF  PEACE 


73 


Indians,  and  forcible  measures  have  been  taken  to  suppress  such 
marauding  bands.^-  The  manufacture  or  uttering  of  counterfeit 
foreign  money  or  bank  notes  is  made  a crime  by  national 
statutes, and  the  courts  have  declared  that  such  acts  are  pro- 
hibited by  international  law.^^  Transporting  dynamite  and 
other  explosives  from  the  United  States  in  vessels  bound  to 
foreign  countries  except  in  the  manner  provided  by  statute  is 
also  made  a crime.®® 

The  duty  to  protect  foreign  governments  against  dangerous 
characters  entering  under  false  passports  is  recognized  by  making 
the  issuance  of  passports  by  unauthorized  persons  a crime.®® 
The  duty  of  assisting  the  administration  of  justice  in  foreign 
countries  and  preventing  frauds  upon  it  by  persons  in  the 
United  States  is  recognized  through  provisions  requiring  certain 
United  States  officials  to  respond  to  letters  rogatory  from  foreign 
governments  requesting  testimony  in  cases  in  which  that  govern- 
ment is  interested,  by  issuing  process  to  obtain  such  testimony 
from  residents.  The  failure  to  respond  to  such  summons,  on  the 
part  of  residents  of  the  country,  is  made  a penal  offense.®^ 

^^Treaties  with  Spain,  1795-1902,  art.  5,  Malloy,  p.  1642;  Mexico, 
1831-1853,  art.  33,  p.  1095;  1848-1853,  art.  ii,  p.  1112.  The  government  of 
Mexico  protested  that  the  United  States  was  not  fulfilling  these  treaty 
obligations,  but  at  a mixed  commission  arbitration  under  treaty  of  1868, 
Malloy,  p.  1128,  the  Mexican  claim  was  not  allowed.  See  Moore,  Int.  Arb. 
3;243o;  Moore’s  Digest,  2;434.  By  treaty  of  1853,  art.  2,  p.  1122,  the 
United  States  was  released  from  this  obligation  to  Mexico.  But  in 
protocols  from  1882  to  1896,  reciprocal  permission  was  given  to  pursue 
marauding  Indians  across  the  boundaries  of  the  two  countries.  Corres- 
pondence has  taken  place  in  reference  to  the  suppression  of  Indians  on 
the  Canadian  frontier,  but  no  treaty  was  negotiated.  See  Moore’s  Digest, 
2 ;434-442. 

^^Act,  May  16,  1882,  23  Stat.  22;  Penal  Code  of  1910,  Act,  Mch.  21, 
I909>  35  Stat.  1088,  in  force  Jan.  i,  1910,  sec.  156-162.  Printed  with 
annotations,  G.  B.  Tucker  and  C.  W.  Blood,  The  Federal  Penal  Code  of 
1910. 

3^U.  S.  vs.  Arjona,  120  U.  S.  479.  Moore’s  Digest,  i ;6i  ;2,  450.  A 
similar  view  was  taken  in  an  English  case.  Emperor  of  Austria  vs.  Day 
and  Kossuth,  2 Giff.  628,  (1861),  in  which  an  injunction  was  issued  to 
restrain  counterfeiting  of  Hungarian  securities  on  the  ground  that  the 
law  of  nations,  which  is  part  of  the  law  of  England,  requires  one  nation 
to  protect  the  prerogative  privilege  of  a foreign  sovereign  to  issue  money. 

35Rev.  Stat.  sec.  4278,  5353;  Act,  May  30,  1908,  35  Stat.  554,  Penal 
Code  of  1910,  sec.  232;  Moore’s  Digest,  21431. 

®®Rev.  Stat.  4078,  Act  of  June  14,  1902,  30  Stat.  386. 

®^Rev.  Stat.  4071-4083,  771-875;  Moore’s  Digest,  2;i04-ii3. 


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[74 


A further  recognition  of  this  duty  is  found  in  the  statute 
giving  consular  courts  jurisdiction  of  acts  by  American  citizens 
promoting  insurrection  against  the  state  in  which  they  are 
located.  Such  offenses  may  be  punished  by  death  provided  the 
consul  and  his  associates  agree  and  the  United  States  minister 
gives  his  approval.^®  The  American  minister  is  also  authorized 
to  use  the  military  or  naval  forces  of  the  United  States  to  prevent 
American  citizens  participating  in  such  insurrections.®^  This 
extension  of  the  duty  to  prevent  injury  to  foreign  states  by  pri- 
vate persons — to  acts  committed  in  foreign  countries — is  one  ex- 
ception to  the  rule.  The  exemption  of  United  States  citizens  from 
local  jurisdiction  in  countries  granting  extraterritorial  consular 
jurisdiction,  however,  imposes  the  duty  of  prevention  upon  the 
United  States  in  such  cases.  American  citizens  continue  under 
the  jurisdiction  of  the  United  States  even  though  resident  abroad, 
so  it  continues  to  be  responsible  for  their  acts. 

With  the  doctrine  that  the  federal  courts  have  no  common  law 
criminal  jurisdiction,  acts  injurious  to  foreign  governments  can 
not  be  prevented  through  the  imposition  of  criminal  penalties  by 
federal  courts,  except  in  cases  covered  by  statutes.  Although 
congress  has  the  power  to  cover  completely  the  field  of  such 
penal  legislation  through  its  power  to  punish  offenses  against  the 
law  of  nations,  the  offenses  actually  covered  are  comparatively 
few.  The  president  undoubtedly  has  power  to  take  preventive 
measures  in  matters  covered  by  treaty,  and  as  to  duties  required 
by  international  law  in  his  general  control  of  foreign  relations, 
but  a large  part  of  the  duty  of  prevention  in  this  respect  remains 
with  the  state  governments.  State  courts  may  assume  a juris- 
diction over  any  act  injurious  to  foreign  governments  according 
to  the  common  law,  and  through  their  general  police  power  the 
state  governments  may  prevent  attempts  or  plots  with  such  aims 
in  view.^® 

Controversy  has  arisen  respecting  the  injury  of  water  power 
locations  in  one  country  by  depletion  or  diversion  of  the  river  in 
an  adjacent  country.  It  has  been  held  that  such  acts  are  cogniz- 
able in  state  courts  when  proceedings  are  instituted  by  citizens 
of  another  state  of  the  union,  and  probably  a similar  rule  would 
apply  in  reference  to  like  injuries  to  foreign  states.^^ 

sspev.  Stat  sec.  4102. 

Jan.  16,  i860,  12  Stat.  77;  Rev.  Stat.  4090. 

^^Moore’s  Digest,  2;432. 

^^Stillman  vs.  Man.  Co.,  3 Wood  and  M.  538;  Foot  vs.  Edwards,  2 
Blatch.  310;  Miss,  and  Mo.  R.  R.  vs.  Ward,  2 Black  485;  Wooster  vs.  Man. 


75] 


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75 


After  the  assassination  of  President  McKinley,  there  was 
diplomatic  agitation  for  the  passage  of  uniform  laws  preventing 
anarchistic  plots,  and  President  Roosevelt,  in  his  message  of  Dec. 
3,  1901,  recommended  legislation  by  congress.^^  No  national 
statutes,  except  those  excluding  anarchists  from  entering  the 
United  States,^^  bear  on  the  point,  but  state  laws  may  prevent 
anarchistic  agitation  and  also  plots  to  commit  other  varieties  of 
crime  abroad.  In  a letter  of  Secretary  Bayard  in  1885,^^  in  reply 
to  a communication  from  the  British  government  asking  whether 
participation  in  the  Irish  National  League  was  not  punishable  un- 
der the  United  States  laws,  it  was  stated  that  no  national  statutes 
penalized  such  offenses  against  foreign  governments,  but  ‘‘if  any 
person  in  the  state  of  Pennsylvania  take  measures  to  perpetrate 
a crime  in  a foreign  land,  such  an  attempt,  coupled  with  prepara- 
tion to  effectuate  it,  though  not  cognizable  in  the  federal  courts, 
is  cognizable  in  the  courts  of  the  state  of  Pennsylvania.  It  is 
only  necessary,  to  obtain  legal  action  in  such  prosecution,  that 
an  oath  specifying  the  offense  be  made  before  a state  magistrate, 
and  the  state  prosecuting  attorney  having  jurisdiction  of  the 
locality  notified  of  the  initiation  of  proceedings.”^® 

(2)  Certain  foreign  public  officers  are  entitled  to  special 
protection  by  international  law;  consequently  a special  duty  of 
prevention  is  incumbent  upon  the  government  in  relation  to  them. 
Diplomatic  agents  are  the  most  important  of  these  privileged 
foreign  officers. 

In  1784  the  court  of  oyer  and  terminer  of  Philadelphia  in 
Res  Publica  vs.  De  Longchamps^®  declared  the  person  of  a public 
minister  “sacred  and  inviolable.”  “Whoever,”  said  the  court, 
“offers  any  violence  to  him  not  only  affronts  the  sovereign  he 
represents  but  also  hurts  the  common  safety  and  well  being  of 
nations;  he  is  guilty  of  a crime  against  the  whole  world.”  It 
added  that  the  ‘ ‘ comites  ’ ’ and  household  of  the  minister  are  like- 

Co.,  31  Me.  246;  In  re  Eldred,  46  Wis.  530;  Thayer  vs.  Brooks,  17  Ohio, 
489;  Armendiaz  vs.  Stillman,  54  Tex.  623;  See  Moore’s  Digest,  2;45i. 

^2See  Moore’s  Digest,  4;95-96:  21432-434. 

^^Act,  Mch.  3,  1903,  32  Stat.  12,  13.  See  Turner  vs.  Williams,  194, 
U.  S.  279,  (1904). 

^^See  Moore’s  Digest,  21432. 

^®The  prevention  of  acts  injurious  to  foreign  states  in  time  of  war 
while  the  United  States  is  neutral  is  provided  for  in  neutrality  statutes. 
See  infra  p.  114  et  seq. 

Dali.  Ill,  (1784)  ; Moore’s  Digest,  4)622. 


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[76 


wise  inviolable.  In  cases  involving  public  ministers  the  court 
held  that  the  law  of  nations  should  be  applied,  and  in  pursuance 
of  this  principle  found  De  Longchamps  criminally  liable  for  an 
assault  upon  the  Secretary  of  the  French  Legation.  Much  diffi- 
culty was  experienced  by  the  court  in  reconciling  its  duties  as  a 
municipal  court  with  those  as  a court  of  international  law.  In 
the  former  capacity  it  must  give  a definite  sentence,  in  the  latter 
it  must  give  a sentence  satisfactory  to  the  injured  party,  the 
king  of  France.  It  finally  concluded  that  ‘‘the  defendant  can 
not  be  imprisoned  until  his  most  Christian  Majesty  shall  declare 
that  the  reparation  is  satisfactory.”  Apparently  a de  facto 
incarceration  without  formal  sentence  of  imprisonment,  which 
if  given  at  all  would  have  to  be  “certain  and  definite,”  seemed 
the  only  way  out  of  the  dilemma. 

This  view  of  the  status  of  municipal  courts  in  performing 
such  duties,  based  on  Lord  Mansfield’s  opinion  in  Triquet  vs. 
Bath,*^  and  the  English  treatment  of  the  case  of  the  Russian 
Ambassador  in  1708,^®  is  probably  now  obsolete.  The  state’s 
duty  is  to  prevent  injury  to  diplomatic  agents  by  any  suitable 
means.  The  criminal  prosecution  and  the  kind  of  punishment 
imposed  on  persons  assaulting  ministers  are  thus  not  specified 
by  international  law.  Such  measures  are  law  supplementary  to 
international  law. 

By  a statute  of  1790^^  the  “offering  of  violence  to  the  person 
of  a public  minister,  in  violation  of  the  law  of  nations”  is  pun- 
ishable by  imprisonment  for  not  over  three  years,  and  fine  at 
the  discretion  of  the  court.  This  act  includes  assaults  upon  mem- 
bers of  the  minister’s  household  and  upon  his  residence.®®  Appar- 

47Triquet  vs.  Bath,  3 Burr  1478,  (1764),  Scott,  6. 

^*The  arrest  of  the  Ambassador  of  the  Czar  of  Russia  in  1708  gave 
rise  to  high  feeling  on  the  part  of  that  potentate  which  was  finally 
assuaged  by  sending  a handsomely  illuminated  apology  prepared  for  the 
occasion.  As  a result  of  this  case  a statute,  7 Ann  12,  (1708)  ; Scott, 
p.  4,  was  passed,  to  prevent  other  such  occurrences  in  the  future. 

^^Act  Apr.  30,  1790,  I Stat.  118,  Rev.  Stat.  4062-4065. 

®oU.  S.  vs.  Hand,  2 Wash.  C.  C.  435 ; See  also  on  scope  of  act,  U.  S. 
vs.  Ortega,  ii  Wheat.  467;  Black  Att.  Gen.  9 op.  7,  (1857);  U.  S.  vs. 
Liddle,  2 Wash.  C.  C.  205,  (1808)  ; In  re  Baiz,  135  U.  S.  403,  (1889). 
Similar  statute  in  Great  Britain,  7 Ann  12,  printed  Scott,  4;  and  Cross  vs. 
Talbot,  8 Mod.  288;  Triquet  vs.  Bath,  3 Burr,  1478.  (1764);  Heathfield 
vs.  Chilton,  4 Burr.  2015,  (1767)  ; Parkinson  vs.  Potter,  L.  R.  10  Q.  B. 
152,  (1885)  ; McCartney  vs.  Garbutt,  24  Q.  B.  D.  36,  (1890)  Scott  191-196; 
Moore’s  Digest,  4;622-628. 


77] 


IN  TIME  OP  PEACE 


77 


ently  it  does  not  include  the  sending  of  anonymous  and  threaten- 
ing letters  to  a minister.  In  1793,  in  the  case  of  U.  S.  vs. 
Ravara,®^  tried  in  the  United  States  circuit  court  at  Philadelphia, 
although  the  statute  was  in  force  the  offender  was  indicted  at 
common  law  for  sending  such  letters  to  the  British  minister.  The 
court,  consisting  of  Justices  Jay  and  Peters,  found  him  guilty. 
With  the  present  view  that  federal  courts  have  no  common  law 
jurisdiction,  such  a prosecution  would  now  be  impossible  in  the 
federal  courts. 

The  duties  of  prevention  do  not  stop  with  the  protection 
from  personal  injury  of  the  minister  and  his  household.  His  juris- 
dictional immunity  must  also  be  protected.  The  courts  are  for- 
bidden by  statute^-  to  take  jurisdiction  of  either  criminal  or  civil 
cases  against  public  ministers  or  their  servants,  and  persons  ex- 
ecuting process  on  such  privileged  characters  are  declared  ‘ ‘ viola- 
tors of  the  law  of  nations”  and  subject  to  criminal  punishment. 
This  statute  has  been  enforced  by  the  courts  in  a number  of 
cases.®^  Foreign  consuls,^^  naval  officers,^^  and  persons  in  the  mili- 
tary forces^®  have  been  held  not  to  enjoy  such  immunities  and  are 
not  included  in  the  terms  of  the  statute  mentioned.  Such  offi- 
cers are  given  no  protection  other  than  that  accorded  aliens,  ex- 
cept in  so  far  as  special  treaties  provide.  They  are,  however, 
recognized  as  being  exempt  from  personal  liability  to  a limited 
extent  for  acts  done  under  authority  of  their  government.  They 
are  therefore  protected  from  prosecution  in  the  state  courts  by  an 
act  giving  the  federal  courts  power  to  release  from  the  state  courts 
on  habeas  corpus,  subjects  of  foreign  states  in  custody  for  acts 
done,  ‘‘under  any  alleged  right,  title,  authority,  privilege,  protec- 

S.  vs.  Ravara,  2 Dali.  297,  (1794)  ; Fed.  Cas.  16,  122.  The 
defendant  in  this  case  was  a Genoese  Consul  but  the  court  held  that  no 
immunity  from  prosecution  attached  to  this  position.  He  was  ultimately 
pardoned  on  condition  that  he  give  up  his  exequatur.  See  Moore’s  Digest, 
S;65.  See  also  Bradford,  Att.  Gen.,  i op.  52,  (1794);  Lee  Att.  Gen.,  i 
op.  71;  (1797)  ; Moore’s  Digest,  4;629-630. 

52Act,  Apr.  30,  1790,  I Stat.  117,  Rev.  Stat.  4063-4064.  The  Supreme 
court  is  authorized  to  issue  writs  of  mandamus  to  courts  or  public  officers 
of  the  United  States  in  cases  where  ambassadors,  public  ministers,  consuls 
or  vice-consuls  are  parties.  Judicial  Code,  1911,  36  Stat.  1087,  sec.  234. 

Parte  Cabrera,  i Wash  C.  C.  232;  U.  S.  vs.  Benner,  Baldwin  234; 
Moore’s  Digest,  4;63i-635. 

54In  re  Baiz,  135  U.  S.  403,  (1899). 

^^Bradford  Att.  Gen.,  i op.  49,  (1794)  ; Nelson  Att.  Gen.  4 op.  336, 
(1844). 

®®People  vs.  McLeod  25  Wend.  483;  See  also  26  Wend.  663. 


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INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[78 


tion,  or  exemption  claimed  under  the  commission  or  order  or 
sanction  of  any  foreign  state,  or  under  color  thereof,  the  validity 
and  effect  whereof  depends  upon  the  law  of  nations.”” 

Where  consulates  are  declared  inviolable  by  treaty  and  pub- 
lic vessels  are  in  port,  the  government  is  under  an  obligation  to 
prevent  violation  of  such  places.  The  usual  method  of  keeping  or- 
der by  the  police  and,  if  necessary,  by  the  employment  of  armed 
force,  serve  to  fulfill  this  duty.®® 

(3)  It  has  been  officially  held  in  the  United  States  that  resi- 
dent aliens  owe  temporary  allegiance  to  the  government,  must 
submit  to  its  laws,  are  entitled  to  the  judicial  remedies  for 
wrongs  open  to  citizens,®®  but  that  the  United  States  government 
is  not  responsible  for  injuries  to  them  by  acts  of  private  tres- 
passers.®^ The  alien  must  get  his  remedy  by  the  usual  legal  pro- 
cesses or  not  at  all.  This  view,  it  will  be  seen,  puts  aliens  on  the 
same  legal  footing  as  citizens.  They  have  no  immunities  or  ad- 
vantages. In  fact  their  rights  are  less  secure  than  those  of  citi- 
zens, for  they  do  not  enjoy  political  privileges,  and  by  the  alien 
act®2  in  force  from  1798  to  1801  they  were  liable  to  expulsion  by 

5^Act,  Aug.  29,  1842,  Rev.  Stat.  sec.  753.  This  act  resulted  from  the 
inability  of  national  authority  to  liberate  McLeod,  on  trial  for  murder  in 
New  York.  The  British  government  and  the  political  department  of  the  U. 
S.  government  took  the  view  that  his  act,  done  as  a soldier  and  recognized 
by  the  British  government,  was  one  for  diplomatic  reparation,  and  personal 
liability  could  not  attach.  See  Moore’s  Digest,  2;24-3o. 

®®The  President  may  use  the  military  and  naval  forces  of  the  govern- 
ment and  call  out  the  militia  to  repel  invasion,  suppress  insurrection  and 
execute  the  laws  of  the  Union.  This  includes  the  execution  of  treaties. 
See  Act.  Mch.  3,  1827,  in  re  military  and  naval  forces,  and  act.  May  2, 
1792,  Jan.  21,  1903,  Feb.  16,  1914,  in  re  the  militia,  under  authority  of  con- 
stitution, art.  I,  sec.  8,  cl.  14. 

^^Carlisle  vs.  U.  S.  16  Wall.  147;  Moore’s  Digest,  4;  9-17. 

60Cushing,  Att.  Gen.  7 op.  229,  (1855)  ; Taylor  vs.  Carpenter,  3 Story, 
458;  Breedlove  vs.  Nicollet,  7 Pet.  413;  Moore’s  Digest,  417. 

«iNelson  Att.  Gen.,  4 op.  332,  (1844)  ; The  Resolution,  Fed.  Court  of 
Appeals,  2 Dali,  i,  (1781);  Lincoln  Att.  Gen.,  i op.  106,  (1802);  Moore’s 
Digest,  4)7;  6;787-79i. 

®2Act,  June  25,  1798,  i Stat.  570,  to  be  in  force  two  years.  Expulsion 
within  three  years  of  landing  of  excluded  classes  is  permitted  in  the 
present  immigration  laws.  Act,  Mch.  3,  1903,  32  Stat.  1213,  sec.  20,  21; 
Moore’s  Digest,  4;  172.  This  however,  is  really  a measure  to  enforce 
the  exclusion  of  undesirable  classes  and  should  be  distinguished  from 
acts  providing  for  expulsion  of  aliens,  common  in  Europe,  but  represented 
in  the  United  States  by  the  single  instance  mentioned. 


79] 


IN  TIME  OP  PEACE 


79 


order  of  the  president.  This  view  denies  the  doctrine  of  interna- 
tional responsibility  for  the  safety  of  resident  aliens,  yet  is  the  one 
generally  expressed  by  the  United  States  government.  When 
reparation  has  been  made  by  the  government  it  has  been  as  a 
‘ ‘ gratuity.  ’ ’ It  has  been  denied  that  the  government  was  under 
an  obligation  of  international  law  to  prevent  injuries  to  aliens  or 
to  make  reparation.®^ 

This  opinion  to  the  contrary,  it  seems  clear  that  responsibil- 
ity is  recognized  in  practice  as  a rule  of  international  law.  The 
principle  is  recognized  by  a number  of  state  governments  in  laws 
making  counties  responsible  for  property  losses  and  damages 
caused  by  mob  violence.  Even  though  the  United  States  denies 
the  theory  in  principle,  it  has  generally  observed  it  in  practice. 
We  may  therefore  consider  the  measures  taken  to  prevent  injury 
to  aliens. 

By  statute  it  is  provided  that  persons  violating  safe  conducts 
or  passports  of  aliens  shall  be  criminally  liable  in  the  federal 
courts.®®  In  numerous  treaties  rights  of  resident  aliens  are  speci- 
fied, extending  to  such  matters  as  protection  of  life  and  property, 
right  to  own  land,  to  make  devises  and  bequests,  and  to  have  re- 
course to  local  courts  of  justice.  In  some  of  them  it  is  specified 
that  subjects  of  the  contracting  powers  shall  have  the  same  rights 
as  citizens  when  in  the  United  States,  and  most  favored  nation 
rights  are  frequently  guaranteed  to  subjects  of  the  respective 
powers.  Treaty  rights  of  this  character  are  protected  by  the 
courts  applying  treaties  as  law.®^ 

The  courts  have  held  that  aliens  within  the  territory  are  en- 
titled to  the  same  protection  in  their  personal  rights  as  citizens 
and  no  more,®®  and  this  has  been  the  principle  generally  acted 
upon  in  preventing  injuries  even  when  treaties  do  not  specify 
such  a privilege.  The  constitutional  guarantees  operate  to  pro- 

^^See  Letter  of  Mr.  Bayard,  Sec,  of  State,  1886,  For.  Rel.  1886,  p. 
158,  Moore’s  Digest,  4;826-835.  See  Act,  June  8,  18^6,  Moore’s  Digest, 
4;85o. 

®^See  Article  by  Julius  Goebel,  Jr.,  The  International  Responsibility 
of  states  for  injuries  sustained  by  aliens  on  account  of  mob  violence,  insur- 
rection and  civil  war.  Am.  Jour,  of  Int.  Law,  8;8o2,  Nov.  1914. 

65Illinois  Rev.  Stat,  1913,  c.  38,  sec.  256a-256g-2s6w ; pp.  854,  857. 

®®Act,  Apr.  30,  1790,  I Stat.  118,  Rev.  Stat.  sec.  4063;  Moore’s  Digest, 
4 ;623. 

®^Hauenstein  vs.  Lynham,  100  U.  S.  483, 

®®B'utler  Att.  Gen.  3 op.  254,  (1837)  ; People  vs.  Warren,  ii  N.  Y.  Cr. 
R.  433;  Moore’s  Digest,  4;2. 


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INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[80 


tect  aliens  resident  in  the  country,  though  they  are  not  effective 
to  prevent  arbitrary  administrative  methods  in  excluding  aliens 
before  arrival®®  or  expelling  those  illegally  entering."^® 

The  ordinary  exercise  of  the  police  power,  prevention  of  in- 
jury to  persons,  and  punishment  of  offenders  is  in  the  hands  of 
the  state  governments.  It  is  therefore  upon  them  that  the  duty 
of  preventing  injury  to  aliens  largely  devolves.  The  principle 
that  treaties  are  enforcable  law  enunciated  by  the  constitution  is 
binding  upon  state  as  well  as  federal  courts,  and  states  have  en- 
forced the  treaty  rights  of  aliens  in  cases  coming  before  them 
subject  to  the  right  of  appeal  to  the  United  States  supreme 
court  should  such  rights  be  neglected.  A similar  control  may  be 
exercised  in  respect  to  the  general  protection  of  property  and  per- 
sonal rights  by  such  constitutional  guarantees  as  those  prohibiting 
state  laws  “impairing  the  obligation  of  contracts”,  or  taking  life, 
liberty  or  property  without  ‘ ‘ due  process  of  law.  ’ ’ Thus  the  na- 
tional government  can  in  a measure  prevent  the  confiscation  of 
contract  debts  of  foreigners,  a matter  which  has  been  of  interna- 
tional importance  especially  in  Latin  American  countries,  al- 
though it  is  not  clear  that  international  law  imposes  such  a 
duty.'^^  But  in  the  punishment  and  control  of  private  individ- 
uals violating  rights  of  aliens,  either  guaranteed  by  treaty  or  by 
international  law,  no  such  method  of  federal  control  over  the 
state  government  exists.  The  international  responsibility  falls 
upon  the  national  government.  It  has  therefore  sometimes  hap- 
pened that  the  national  government  has  made  reparation  for  fail- 
ure on  the  part  of  the  states  to  perform  this  duty  of  prevention 
even  though  it  had  by  law  no  means  of  controlling  the  states  or 
offering  adequate  protection  itself. 

During  the  decade  from  1890  to  1900  a number  of  cases 
arose  in  which  Italians  were  murdered  or  injured  by  mobs  and 
in  which  the  state  authorities  appear  to  have  been  lax  in  per- 
forming their  duties  of  prevention.  Presidents  Harrison  and 
McKinley  strongly  urged  congress  to  enact  laws  giving  the  fed- 
eral courts  jurisdiction  of  cases  involving  injury  to  aliens,  espe- 
cially where  treaty  rights  were  involved,  as  was  the  case  in  the 

S.  vs.  Williams,  194  U.  S.  292;  U.  S.  vs.  JuToy,  198  U.  S.  253,  263. 

70Zakonite  vs.  Wolf,  226,  U.  S.  212. 

■^iConstitution,  art.  2,  sec.  10,  cl.  i ; amendment  14,  in  reference  to 
states  and  amendment  5,  in  reference  to  Congress.  The  United  States 
has  generally  refused  to  prosecute  claims  of  its  citizens  based  on  contract, 
even  where  the  contract  was  with  the  foreign  government  itself.  See 
Moore’s  Digest  6:705-738,  6)285-289. 


81] 


IN  TIME  OF  PEACE 


81 


Italian  outrages/^  It  seems  that  there  is  adequate  constitu- 
tional basis  for  such  legislation,  both  in  the  implied  power  of  the 
national  government  to  enforce  treaties  which  it  may  constitu- 
tionally conclude,  and  in  the  power  to  define  and  punish  offenses 
against  the  law  of  nations.  W.  W.  Willoughby  has  said  in  this 
connection,  ‘‘There  would  seem  to  be  no  valid  constitutional  ob- 
jection to  an  act  of  congress  giving  to  the  federal  courts  cogniz- 
ance of  all  offenses  for  which  the  United  States  may  according 
to  the  law  of  nations  be  held  responsible  to  foreign  powers.  ’ 

INFRACTION  OF  TREATIES 

(1)  Treaties  may  be  declaratory  of  international  law,  in 
which  case  the  contracting  states  have  no  more  rights  and  no  more 
duties  than  they  would  have  under  international  law.  They  may 
be  amendatory  of  international  law,  such  as  general  international 
conventions,  in  which  case,  after  ratification,  their  provisions  are 
international  law  and  the  contracting  states  are  under  new  du- 
ties according  to  them.  Or  they  may  create  exceptions  to  the  gen- 
eral rule  of  international  law,  being  in  nature  similar  to  contracts. 
In  some  such  treaties  the  national  obligations  are  made  greater 
than  under  international  law,  as  in  treaties  guaranteeing  spe- 
cial protection  to  aliens  or  special  protection  to  territory  such  as 
Panama  and  Cuba.  In  other  cases  the  national  duties  are  made 
less  than  they  would  be  under  international  lav/.  The  protocols 
with  Mexico  relating  to  Indian  marauders  and  the  capitulations 
of  Turkey  and  other  non-Christian  countries  reduce  the  usual 
obligations  of  abstaining  from  exercising  force  and  jurisdiction 
in  foreign  territory,  although  they  add  new  obligations  inciden- 
tal to  the  exercise  of  these  privileges. 

Treaty  stipulations  are  considered  in  this  thesis  in  connec- 
tion with  the  rules  of  international  law  to  which  they  relate,  the 
general  view  being  taken  that  treaties  when  duly  ratified  are  ex- 
propria  vigore  municipal  law,  and  whichever  one  of  these  classes 
they  fall  into  they  will  be  enforced  as  such  by  United  States 
courts  or  executive  officials. 

■^^Pres.  Harrison’s  Message,  Dec.  g,  1891,  For.  Rel.  1891,  v;  Moore’s 
Digest,  6;840;  Pres.  McKinley’s  Message,  Dec.  5,  1899,  For.  Rel.  1899, 
xxii,  Moore’s  Digest,  6)846;  Dec.  3,  1900,  For.  Rel.,  1900,  xxii.  Moore’s 
Digest,  6)874. 

73W.  W.  Willoughby,  The  Am.  Const.  System,  N.  Y.,  1904,  p.  108. 
See  also  U.  S.  vs.  Arjona,  120  U.  S.,  479,  (1887),  on  the  subject,  also  E. 
S.  Corwin,  National  Supremacy,  N.  Y.  1913. 


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INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[82 


At  this  point  the  subject  matter  of  treaties  will  not  be  con- 
sidered, but  rather  the  general  method  of  treaty  enforcement — 
the  measures  which  the  United  States  has  taken  to  prevent  the 
infraction  of  treaties. 

(2)  The  most  important  provision  of  this  character  is  found 
in  the  constitution  of  the  United  States,  which  declares  that, 
‘‘this  constitution  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof;  and  all  treaties  made  or  which 
shall  be  made  under  the  authority  of  the  United  States  shall  be 
the  supreme  law  of  the  land ; and  the  judges  in  every  state  shall 
be  bound  thereby,  anything  in  the  constitution  or  law  of  any 
state  to  the  contrary  notwithstanding.”’’^ 

What  agreements  are  treaties  in  the  meaning  of  this  provi- 
sion is  a question  of  municipal  law.  The  constitution  requires 
that  two-thirds  of  the  senate  concur  with  the  president  in  mak- 
ing treaties;’’®  it  therefore  seems  that  executive  agreements,  of 
which  a considerable  number  have  been  concluded  by  the  presi- 
dent alone, would  not  be  “the  supreme  law  of  the  land”  in  this 
sense.  There  is  undoubtedly  a limit  to  the  scope  of  the  treaty 
power,  from  the  constitutional  division  of  power  between  state 
and  national  government,  but  where  the  line  is  to  be  drawn  has 
not  been  defined.  It  certainly  appears  to  extend  beyond  the  legis- 
lative power  of  congress.'^’’  Ratification  and  proclamation  also  ap- 
pear to  be  necessary  before  a treaty  is  valid  in  the  sense  of  the 
constitution.’’®  Even  when  these  conditions  are  complied  with 
and  from  a technical  standpoint  the  treaty  is  clearly  within  the 
terms  of  the  constitutional  provision  there  are  important  limita- 
tions to  its  full  effect  as  municipal  law  in  the  sense  of  that  term 
as  adopted  in  this  thesis. 

In  this  connection  the  dual  character  of  the  obligation  im- 
posed by  treaties  must  be  borne  in  mind.  A treaty  primarily 
creates  obligations  between  states.  The  recognized  representa- 
tive of  the  state,  that  is  its  government,  may  alone  be  held 
responsible  for  the  infraction  of  treaties  so  far  as  the  other  con- 
tracting parties  are  concerned.  This  is  the  only  function  of 

'^^Constitution,  art.  2,  sec.  2,  cl.  2. 

’’’^Constitution,  art.  2,  sec.  2,  cl.  2. 

■’’^See  Moore's  Digest,  5 ;2io-2i8. 

’■’’Chirac  vs.  Chirac,  2 Wheat.  259,  276,  (1817);  Geofroy  vs.  Riggs, 
133  U.  S.  258;  Hauensteiii  vs.  Lynham,  100  U.  S.  483.  Contra  Prevost 
vs.  Greneaux,  19  How.  i;  Moore’s  Digest,  5;i66;  175-179. 

’®See  Moore’s  Digest,  5;202-2io. 


83] 


IN  TIME  OF  PEACE 


83 


treaties  in  many  countries  including  Great  Britain.  It  is  for  the 
political  department  of  the  government  to  decide  upon  and 
enact  appropriate  measures  for  putting  them  into  effect.  Pri- 
vate rights  under  municipal  law  are  not  affected  until  such 
action  is  taken."^^ 

In  the  United  States,  however,  aside  from  this  primary  obli- 
gation imposed  upon  the  government,  treaties  often  impose  obli- 
gations immediately  upon  individuals.  The  constitution  has  de- 
clared, in  order  to  provide  for  the  performance  of  the  duty  by 
the  government,  that  treaties  are  law  and  immediately  effective 
in  altering  private  rights  and  liabilities,  and  the  courts  must  take 
cognizance  of  them  in  that  capacity.  Thus  in  England  if  the 
government  wishes  to  escape  liability  for  infractions  of  treaties 
stipulating  a change  in  private  rights  it  must  always  pass  statutes 
providing  for  their  enforcement.  In  the  United  States  this  bur- 
den is  shifted  from  congress  by  the  constitutional  provision,  al- 
though in  some  cases  additional  legislation  may  be  necessary, 
especially  where  an  appropriation  of  money  is  required  to  make 
the  treaty  effective. 

(3)  This  secondary  function  of  treaties,  however,  is  gov- 
erned entirely  by  municipal  law.  Hence,  although  the  interna- 
tional obligation  of  treaties  can  not  be  altered  except  by  mutual 
consent,®®  the  terms  of  the  treaty  itself,®^  or,  as  is  generally  ad- 
mitted, by  an  entire  change  of  the  conditions  upon  which  the 
treaty  was  founded,®^  the  obligations  of  individuals  and  officers 
of  government  under  it,  are  always  subject  to  the  will  of  the  sov- 
ereign. An  act  of  congress  specifically  abrogating  a treaty,®®  or 
a subsequent  and  conflicting  statute  by  that  body,®^  will  abrogate 

’■^See  Holland,  Studies  in  International  Law,  p.  190-193,  Westlake,  Is 
International  Law  Part  of  the  Law  of  England?  L.  Q.  R.  22;  14. 

®oSee  Moore’s  Digest,  5;3i9-322;  363-364. 

®iSee  Moore’s  Digest,  5;322-335. 

®2See  Moore’s  Digest,  5;355-356.  This  principle  is  generally  spoken  of 
as  the  implied  reservation  contained  in  all  treaties  of  ‘Vebus  sic  stantibus.” 
“‘There  will  be  no  state  in  the  position  to  conclude  a treaty  for  all  time 
wherein  lies  a perpetual  limitation  of  its  own  sovereignty.”  Heinrich 
Treitschke,  Politik,  Leipsic,  1899,  2;550. 

®3Act  July  7,  1798,  I stat.  578,  abrogating  French  treaty  of  1778. 
Moore’s  Digest,  5',35^-3^3- 

®^Head  Money  Cases,  112  U.  S.  580;  Whitney  vs.  Robertson,  124  U. 
S.  190,  (1888)  ; The  Chinese  Exclusion  Cases,  130  U.  S.  581,  (1889)  ; 
Homer  vs.  U.  S.,  143  U.  S.  570;  LaAbra  Silver  Mining  Co.,  vs.  U.  S.  175 
U.  S.  423,  460,  (1899)  ; Moore’s  Digest,  5 ; 364-370- 


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a treaty  so  far  as  municipal  law  is  concerned,  although  vested 
rights  created  under  it  will  be  protected  by  constitutional  guar- 
antees in  the  same  manner  as  vested  rights  under  repealed  stat- 
utes.®® The  observance  of  a treaty,  although  a duty  of  interna- 
tional law,  is  a political  question  subject  to  the  discretion  of  the 
sovereign  and  beyond  the  power  of  municipal  law  to  control. 
However,  by  requiring  that  any  such  statute  be  unequivocal  and 
incapable  of  reconciliation  with  the  treaty  by  interpretation,®® 
the  courts  of  the  United  States  can  do  much  toward  enforcing  the 
duty  of  the  government  not  to  abrogate  treaties.  Applying  this 
principle.  United  States  courts  have  held  that  war  does  not  termi- 
nate treaties.  It  suspends  them  in  respect  to  private  rights  of 
enemy  persons  and  brings  them  into  effect  in  respect  to  provi- 
sions specifically  related  to  rights  during  war.®^ 

In  addition  to  the  power  of  the  political  department  of  the 
government  to  terminate  treaties  it  also  has  exclusive  control  of 
many  treaty  provisions  which  are  by  their  nature  incapable  of 
enforcement  by  municipal  law.  Treaty  obligations  to  pay  money, 
to  cede  territory,  to  enact  laws,  to  enter  into  constructive  enter- 
prises such  as  the  Panama  Canal  or  to  make  a particular  disposi- 
tion of  military  and  naval  forces  are  addressed  to  the  political  de- 
partment of  the  government.  The  courts  hold  them  political  ques- 
tions and  will  follow  the  political  department  in  interpreting 
them.®®  They  can  not  be  enforced  as  municipal  law. 

The  only  treaty  provisions  which  are  law  actually  enforce- 
able by  regularly  constituted  municipal  authorities  are  those 

®5Chirac  vs.  Chirac,  2 Wheat.  259,  277,  (1817)  ; Society  for  the  Pro- 
pagation of  the  Gospel  vs.  New  Haven,  8 Wheat.  464;  Carneak  vs.  Banks, 
10  Wheat.  182;  Moore’s  Digest,  51386-387. 

®®In  re  Chin  A.  On,  18  Fed.  Rep.  506. 

s^Society  for  the  Propagation  of  the  Gospel  vs.  New  Haven,  8 Wheat, 
464,  494,  (1823)  ; Carneak  vs.  Banks,  10  Wheat.  181.  Great  Britain  took 
a similar  view  in  respect  to  a statute  giving  effect  to  a treaty  which  in 
terms  was  “to  continue  in  force  so  long  as  the  said  treaty  between  his 
majesty  and  the  United  States  should  continue  in  force,  and  no  longer.” 
It  was  held  that  the  War  of  1812  did  not  terminate  the  treaty  hence  the 
Statute  remained  valid.  See  37  Geo.  HI,  c.  97,  (1797),  in  re  treaty  1794, 
art  9,  Sutton  vs.  Sutton,  i Russell  and  Mylne,  663 ; Moore’s  Digest,  5 1373. 
The  United  States  did  not  agree  to  the  Spanish  claim  that  the  war  of 
1898  abrogated  all  treaties  between  the  two  countries.  See  Moore’s  Digest, 
5 ;375-376. 

®8Doe  vs.  Branden,  16  How.  635;  Foster  vs.  Neilson,  2 Pet.  314;  The 
Amiable  Isabella,  6 Wheat,  i ; Bottiller  vs.  Dominguez,  130  U.  S.  238. 
Moore’s  Digest,  5;  241-242. 


85] 


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85 


parts  relating  to  the  control  of  persons  and  inferior  officers  of 
government  within  the  jurisdiction  of  the  government.  This  en- 
forcement may  be  either  judicial  or  executive. 

Judicial  enforcement  is  secured  by  the  power  to  hold  invalid 
legislation  or  constitutional  provisions  of  states  in  conflict  with 
treaties,®®  to  compel  administrative  officials  to  perform  acts  by 
mandamus,  or  to  refrain  from  action  by  injunction,  and  to  apply 
treaties  directly  as  rules  of  decision  in  adjudicating  private 
rights,  such  as  privileges  granted  aliens,  and  foreign  officers  resi- 
dent in  the  country,  prize  rights  of  neutrals  and  enemies  in  time 
of  war,  etc.  By  such  measures  as  injunction,  the  imposition  of 
criminal  penalties  and  civil  liability  in  tort,  courts  both  state  and 
federal  may  also  prevent  the  infraction  of  treaty  rights  of  alien 
persons  or  foreign  states  by  private  persons  within  their  jurisdic- 
tion. 

Executive  authorities  may  also  take  measures  to  enforce  trea- 
ties directly.  It  has  been  held  that  imprisonment  of  persons  in 
pursuance  of  treaty  stipulations  by  executive  authorities,  in  the 
absence  of  legislation,  judicial  process  or  declaration  of  martial 
law,  is  not  an  unconstitutional  exercise  of  power  nor  a depriva- 
tion of  liberty  without  due  process  of  law.®®  It  would  thus  seem 
that  executive  measures  appropriate  to  the  fulfillment  of  treaty 
obligations  may  be  effectively  used  under  no  authority  other  than 
the  treaty  itself. 

Legislative  authority  is  necessary  to  make  treaties  effective 
in  many  eases,  especially  in  those  requiring  an  expenditure  of 
money.®^  It  is  generally  considered  to  be  a duty  of  congress  to  act 
where  its  aid  is  required,®^  but  in  the  case  of  a treaty  with  Mexico 
of  1883,  providing  that  necessary  legislation  should  “take  place 
within  twelve  months  from  the  date  of  exchange  of  ratifica- 
tions,^’®® congress  failed  to  perform  this  duty.  In  many  other 
cases  the  enforcement  of  treaties  can  be  made  more  effective  by 

®9Ware  vs.  Hylton,  3 Dali.  199,  (1796)  ; Chirac  vs.  Chirac,  2 Wheat. 
259;  Hauenstein  vs.  Lynham,  100  U.  S.  483;  Gordon  vs.  Kerr,  i Wash. 
C.  C.  322;  Moore’s  Digest,  5;37i-372. 

®oEx  Parte  Toscano,  208  Fed.  Rep.  938,  (U.  S.  Circuit  Court,  Cal. 
1913).  See  also  in  re  Debs,  158  U.  S.  564  as  illustrating  general  executive 
power  to  safeguard  broad  general  interest,  and  its  application  to  treaty 
enforcement  by  E.  S.  Corwin,  National  Supremacy,  N.  Y.,  I9I3»  p.  293. 

9iSee  Moore’s  Digest,  51221-223. 

Q^Cushing  Att.  Gen.,  6 op.  296,  (1854). 

®3Treaty  with  Mexico,  1883,  art.  8,  Malloy,  p.  1151.  See  Moore’s 
Digest,  5;222. 


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[86 


legislative  action.  Statutes  and  orders  imposing  criminal  penal- 
ties, creating  administrative  positions,  directing  public  officers, 
etc.,  have  often  been  enacted  and  promulgated  for  this  purpose. 

Rules  contained  in  treaties  are  similar  to  those  contained  in 
international  law  in  their  relation  to  the  municipal  law  of  the 
United  States.  In  both  cases  the  rules  are  primarily  obligatory 
upon  the  government,  and  in  both  cases,  as  a municipal  measure 
to  aid  in  the  enforcement  of  the  government’s  obligations,  it  is 
provided  that  the  rules  shall  be  part  of  municipal  law  and  di- 
rectly enforceable  by  courts  and  executive  officers  in  appropriate 
cases.  In  both  cases  also  many  of  the  rules  are  by  their  nature  in- 
capable of  immediate  enforcement  as  municipal  law,  because  the 
courts  can  not  exercise  jurisdiction  over  the  parties  or  subject 
matter.  In  such  cases  they  are  political  questions,  and  the  na- 
tional duties  under  them  may  be  fulfilled  through  discretionary 
executive  action  or  the  enactment  and  enforcement  of  supplemen- 
tary laws. 


CHAPTER  V.  OBLIGATIONS  OF  VINDICATION 


INTRODUCTORY 

The  duties  of  prevention  relate  to  acts  committed  by  private 
individuals  for  which  the  government  is  responsible,  and  which 
it  is  bound  to  prevent.  The  government  is  not  responsible  for 
acts  of  aliens,  but  international  law  sometimes  requires  it  to  treat 
violators  of  international  law,  even  when  they  are  aliens,  in  a spe- 
cified manner.  The  obligation  of  states  is  not  limited  to  the 
mere  negative  one  of  not  doing  harm  to  others,  but  as  members 
of  the  family  of  nations  they  owe  at  least  a moral  duty  to  that  so- 
ciety to  take  measures  to  promote  its  general  welfare.  They  must 
vindicate  their  sovereignty,  when  foreigners  violate  international 
law  in  their  territory  or  foreign  criminals  attempt  to  find  refuge 
there,  by  exercising  jurisdiction  over  such  persons  according  to 
the  requirements  of  international  law.  And  they  must  vindicate 
their  position  in  the  family  of  nations  by  cooperating  with  other 
nations  in  constructive  activity  for  the  general  good. 

Duties  of  this  character  are  for  the  most  part  in  a process  of 
becoming,  rather  than  being  already  established  law.  In  time  of 
peace,  customary  international  law  does  not  require  such  activity, 
yet  the  progress  of  conventional  law,  in  requiring  duties  of  this 
character,  leads  to  the  belief  that  some  of  them  may  be  soon  rec- 
ognized as  obligations  of  the  law  of  nations. 

INTERNATIONAL  COOPERATION 

Such  international  conventions  as  those  providing  for  an  in- 
ternational bureau  of  weights  and  measures,^  for  the  interna- 
tional protection  of  industrial  property,^  for  the  protection  of 
submarine  cables,^  for  the  repression  of  the  African  slave  trade,* 
for  a Universal  Postal  Union,®  for  the  protection  of  literary  and 

^International  Bureau  of  Weights  and  Measures,  1875,  Malloy,  p.  1924. 

“Convention  for  International  Protection  of  Industrial  Property,  1883, 
Malloy,  p.  1935. 

^Convention  for  Protection  of  Submarine  Cables,  1884,  Malloy,  p.  1949. 

^General  Act  for  the  Repression  of  African  Slave  Trade,  1890,  Malloy, 
p.  1964. 

“Universal  Postal  Conventions,  1891,  1897.  Concluded  by  Act  of  June 
8,  1872.  See  Moore’s  Digest,  5 ;220. 

87 


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[88 


artistic  copyrights,®  for  promoting  sanitation  and  preventing  epi- 
demic diseases,^  are  adhered  to  by  large  numbers  of  states  includ- 
ing the  United  States,  and  impose  duties  upon  states  for  the  gen- 
eral good  of  the  civilized  world.  Similar  duties  are  imposed  by 
the  Geneva  and  the  Hague  conventions,  although  their  rules  are 
largely  declaratory  of  international  law  and  define  obligations 
owed  to  single  states  rather  than  those  required  for  the  general 
good  alone.  In  its  most  recent  interpretation  of  the  Monroe  Doc- 
trine the  United  States  appears  to  have  recognized  that  it  must 
assume  certain  responsibilities  in  connection  with  countries  of 
the  Western  Hemisphere.  The  administration  of  customs  duties 
on  several  occasions  in  Latin  American  countries,  for  the  purpose 
of  paying  obligations  owed  by  such  countries  to  European  na- 
tions, is  an  illustration  of  the  exercise  of  this  duty and  the  ac- 
tivity of  the  various  Pan-American  congresses  indicates  further 
special  duties  connected  with  the  affairs  of  the  new  world.^ 

These  obligations  are  spoken  of  as  duties  of  international  co- 
operation,^® and  the  law  regulating  them  as  international  admin- 
istrative law.  There  has  been  a great  deal  of  municipal  legis- 
lation for  enforcing  these  duties,  and  judicial  opinion  interpret- 
ing them,  but  as  they  are  not  yet  duties  imposed  by  international 
law  aside  from  convention  we  will  not  attempt  to  consider  the 
subject  here. 


PREVENTION  OP  CRIME 

There  is,  however,  one  duty  of  a similar  character  which  is  so 
habitually  practiced  and  is  so  well  established  that  it  can  almost 
be  said  to  constitute  a real  duty  of  international  law.  That  is  the 
duty  to  aid  in  the  suppression  of  the  more  serious  crimes.  The 
power  of  national  courts  to  exercise  extra-territorial  jurisdiction 

^Convention  on  Literary  and  Artistic  Copyrights,  1902,  Malloy,  p,  2058. 

■^International  Sanitary  Convention,  1903,  Malloy,  p.  2066. 

®See  President  Roosevelt’s  Annual  Message,  Dec.  6,  1904,  For.  ReL 
1904,  xli ; Moore’s  Digest,  6 ;596. 

^Act  May  24,  1888,  Moore’s  Digest,  6;599-6o4.  Treaties  of  the  Central 
American  Peace  Conference,  1907,  Malloy,  p.  2391-2400.  The  duty  of  pre- 
serving order  in  Cuba  and  Panama  is  recognized  by  treaties,  Cuba,  1903, 
p.  362-4,  Panama,  1903,  art.  23,  p.  1356. 

i®See  Moore’s  Digest,  2)466-488. 

^^See  P.  S.  Reinsch,  International  Unions  and  their  administration, 
Am.  Jour.  Int.  Law,  i ;579-673.  (1907)  : Int.  Adm.  Law  and  National  Sov- 
ereignty, Am.  Jour.  Int.  Law,  3;i45,  (1909);  Public  Int.  Unions,  Boston, 
1911;  Hershey,  Essentials  of  Int.  Pub.  Law,  p.  5,  bibliography,  p.  14. 


89] 


IN  TIME  OF  PEACE 


89 


on  the  high  seas  for  the  punishment  of  pirates  is  well  recognized 
by  international  law,  and  it  seems  that  a positive  duty  to  exercise 
this  authority  and  suppress  piracy  is  likewise  fairly  established. 
A government  that  does  not  take  adequate  measures  to  suppress 
piracy  may  expect  other  governments  to  intervene  and  punish  pi- 
rates even  within  its  jurisdiction.^^  The  slave  trade  conventions 
have  recognized  a similar  obligation  to  suppress  this  commerce. 
The  municipal  measures  which  the  United  States  has  taken  to 
perform  these  duties  have  been  diseussed.^^ 

Attempts  have  been  made  to  conclude  international  conven- 
tions requiring  states  to  prevent  the  emigration  of  criminals  from 
their  territory  and  to  establish  international  police  bureaus  for 
the  detection  of  criminals,  but  it  can  not  be  said  that  interna- 
tional law  as  yet  imposes  obligations  of  this  character.^*  The 
duty  of  punishing  its  own  criminals  and  giving  up  criminals  seek- 
ing asylum  in  its  territory  to  the  state  where  the  crime  was  com- 
mitted is  sometimes  considered  a duty  of  international  law,^® 
and  it  certainly  is  a duty  very  commonly  observed.  However, 
the  assertion  that  states  are  positively  required  by  international 
law  to  extradite  criminals  appears  to  be  erroneous.  Extra- 
dition is  not  a duty  of  international  law.^®  In  the  absence  of 
a treaty,  states  are  not  under  an  obligation  to  surrender 
criminals.  The  duty  has,  however,  been  so  universally  acknowl- 
edged by  conventional  law  that  a brief  consideration  of  the  laws 
of  the  United  States  relating  to  its  enforcement  may  be  appro- 
priate. 


EXTRADITION 

That  no  legal  obligation  to  extradite  criminals  exists  in  the 
absence  of  treaty  has  been  affirmed  by  courts  and  political  officers 
of  the  United  States.^^  There  have,  however,  been  some  cases  of 

^^See  the  Amelia  Island  case,  President  Monroe’s  message,  Nov.  17, 
1818,  Moore’s  Digest,  i;i73:  21406-408. 
i^Supra,  pp.  34-36. 

^^Such  efforts  have  been  made  especially  in  reference  to  the  suppres- 
sion of  anarchists;  see  Moore’s  Digest,  4;95-96:  2 -,432-434. 

i^See  Sir.  E.  Clarke,  A treatise  on  the  Law  of  Extradition,  4th  ed. 
1903,  ch.  I ; Chancellor  Kent,  In  Matter  of  Washburn,  4 Johns  Ch.  105,  107, 
(N.  Y.)  ; Hershey,  op.  cit.,  p.  263,  note  69. 

i®See  Moore  on  Extradition,  i;i3-2o;  Moore’s  Digest,  4;245- 
^'^Commonwealth  vs.  Deacon,  10  S.  and  R.  125;  U.  S.  vs.  Rauscher, 
1 19  U.  S.  407;  Terlinden  vs.  Ames,  184  U.  S.  270,  289,  (1902)  ; Moore’s  Di- 
gest, 4;245-246. 


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extradition  without  treaty,  but  the  act  has  been  described  as  one 
dictated  by  courtesy  rather  than  by  legal  obligation.^®  The  in- 
ternational duty  recognized  by  the  United  States,  therefore,  is 
that  of  obeying  the  extradition  treaties. 

(1)  Provision  for  extradition  of  murderers  and  forgers  was 
made  in  the  treaty  with  Great  Britain  of  1794,  in  force  till  1807.^® 
The  first  general  extradition  provision  was  in  the  Webster- Ash- 
burton treaty  of  1842  with  Great  Britain.^®  Since  that  time  trea- 
ties have  been  concluded  with  almost  all  important  countries,^^ 
and  they  generally  specify  that  persons  indicted  for  the  more  se- 
rious crimes  shall  be  extradited.  Express  exclusion  is  ordinarily 
made  of  political  offenders.^- 

Although  there  have  been  some  state  laws  providing  for  ex- 
tradition to  foreign  governments,’®  the  better  opinion  seems  to  be 
that  the  national  government  alone  has  the  power  to  deliver  up 
fugitives  from  foreign  countries.®^  National  statutes®^  since  1848 
have  provided  for  the  apprehension  and  preliminary  trial  by  fed- 
eral courts  of  persons  whose  extradition  is  requested,  although  it 
has  been  held  that,  treaties  being  law,  the  courts  can  perform 
such  functions  in  the  absence  of  statute.’®  The  courts  have  held 

^®See  case  of  Arguelles,  Moore  on  Extradition,  i ;33 : Moore’s  Digest, 
4 ;249- 

i^Treaty  with  Great  Britain,  1794-1807,  art.  27,  Malloy,  p.  605. 

20Treaty  with  Great  Britain,  1842,  art.  10,  Malloy,  p.  655, 

2iEighty-four  treaties  with  fifty  countries  have  been  concluded.  The 
independent  states  with  which  there  appear  to  be  no  treaties  at  present 
are  as  follows : Roumania,  Bulgaria,  Greece,  Montenegro,  Paraguay,  Uru- 
guay, China,  Persia,  Siam,  Liberia,  Abyssinia,  There  is  no  extradition 
treaty  with  the  German  Empire,  but  treaties  are  in  effect  with  the  North 
German  Union  and  the  folowing  states  of  the  empire : Baden,  Bavaria, 
Bremen,  Hanover,  Hesse,  Mecklenburg-Schwerin,  Mecklenburg-Strelitz, 
Oldenburg,  Prussia,  Schamberg-Lippe,  Wurtemburg. 

220rnelas  vs.  Ruiz,  161  U.  S.  502,  (1896)  ; In  re  Ezeta.  62  Fed.  Rep. 
972;  Moore’s  Digest,  4;332-354- 

23Treaty  with  Mexico,  1861,  art.  2;  Law  of  New  York,  1822,  p,  134, 
N.  Y.  Rev.  Stat,  1827,  declared  unconstitutional  in  People  vs,  Curtis,  50 
N.  Y.  321,  (1872)  ; Moore  on  Extradition,  i ;53 : Moore’s  Digest,  4;240. 

24Holmes  vs.  Jennison,  14  Pet.  540,  579,  (1840)  ; Legare,  Att.  Gen.  3 op. 
661,  (1841)  ; People  vs.  Curtis,  50  N.  Y.  321,  (1872)  ; U.  S.  vs.  Rauscher, 
1 19  U.  S.  407,  414,  (1886), 

23Act.  Aug.  12,  1848;  9 Stat.  302,  act.  June  22,  i860,  12  Stat.  83,  Rev. 
Stat.  sec.  5270-5280. 

26A  number  of  extradition  treaties  were  concluded  before  the  first 
statute  in  1848,  and  extraditions  were  made  under  them.  See  The  British 


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IN  TIME  OF  PEACE 


*91 


that  extradition  need  not  be  given  for  offenses  not  specified  in  the 
treaty,  but  the  meaning  of  the  offense  named  in  a treaty  will  be 
determined  by  the  law  of  the  country  where  it  was  committed.^^ 

(2)  Constitutional  guarantees  require  that  “due  process  of 
law  ’ ’ be  given  to  persons  in  the  territory  of  the  United  States  be- 
fore extradition.  This  necessity  is  satisfied  if  evidence  sufficient 
to  warrant  commitment  for  trial  in  the  United  States-®  or  to  in- 
dicate probable  guilt-^  is  forthcoming,  even  though  the  party  is 
to  be  extradited  to  foreign  territory  under  military  occupancy  of 
the  United  States,  where  the  usual  forms  of  trial  guaranteed  to 
inhabitants  of  the  United  States  may  not  be  had.®®  Many  coun- 
tries refuse  to  extradite  their  citizens,  and  a number  of  treaties 
to  which  the  United  States  is  a party  specifically  exempt  them, 
but  the  United  States  does  not  recognize  this  exemption  in  the 
absence  of  specific  treaty  provision.®^ 

(3)  The  actual  surrender  of  the  accused  is  an  executive  act 
and  is  performed  by  the  president  through  the  secretary  of  state, 
except  in  certain  treaties  with  Mexico,®®  in  which  the  state  au- 
thorities along  the  frontier  are  given  power  to  surrender  accused 
persons  within  their  jurisdiction.  The  treaties  themselves  fur- 
nish sufficient  authority  for  the  exercise  of  this  power,®®  but  it 
can  not  be  exercised  until  the  evidence  has  been  heard  and  certifi- 
cation given  by  the  proper  judicial  authority.®^  It  seems  that 
even  after  such  certification  the  president’s  power  is  not  merely 
administrative.  He  may  in  his  discretion  refuse  to  surrender  a 

Prisoners,  i Wood  and  M.  66;  (U.  S.  C.  C.,  1845)  U.  S.  vs.  Watts,  14  Fed. 
Rep.  130;  U.  S.  vs,  Rauscher,  119  U.  S.  407;  Moore’s  Digest,  4;270-273.  U. 
S.  vs.  Robbins,  Bees  Admr,  266;  Matter  of  Metzger,  5 How.  176,  (1847). 
See  E.  S.  Corwin,  National  Supremacy,  N.  Y.,  1913,  p.  277  et.  seq. 

27This  is  frequently  required  by  the  terms  of  the  treaty.  See  Ben- 
son vs.  McMahon,  127  U.  S.  457,  466,  (1880)  ; In  re  Farez,  7 Blatch.  345, 
Moore’s  Digest,  4 1273-278. 

28Nelson  Att.  Gen.,  4 op.  201,  (1843)  ; Moore’s  Digest,  4;388-39i. 

29In  re  Ezeta,  62  Fed,  Rep,  972. 

®®Act.  June  6,  1900,  31  Stat.  656,  providing  for  extradition  to  territory 
under  military  government,  and  Neeley  vs.  Henkel,  180  U.  S.  109,  (1901), 
upholding  the  statute,  Moore’s  Digest,  4 ;287-3o6. 

^iNeeley  vs.  Henkel,  180  U.  S.  109,  (1901)  ; Moore’s  Digest,  4;287-3o6. 

^^Treaty  with  Mexico,  1861,  art.  2,  Malloy,  p.  1126. 

^^Terlinden  vs.  Ames,  184  U.  S.  270,  289,  (1902)  ; Moore’s  Digest, 
4 ;397-399. 

^^Cushing,  Att.  Gen.,  6 op.  217,  (1853)  ; Nelson,  Att.  Gen.,  4 op.  240, 

(1843). 


92  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [92 

person  found  liable  by  the  courts.^^  The  ultimate  fulfillment  of 
the  duty  of  extradition  is  therefore  a political  rather  than  a legal 
one  according  to  the  law  of  the  United  States.  Municipal  law 
can  not  compel  the  president  to  deliver  criminals,  although  after 
action  by  the  courts  it  is  undoubtedly  his  duty  to  do  so,  except  in 
extraordinary  cases. 

RETURN  OF  DESERTING  SEAMEN 

The  return  of  deserting  seamen  to  their  vessels  is  a matter 
resembling  extradition.  As  in  that  case,  international  law  im- 
poses no  duty  in  the  absence  of  treaty,^®  but  the  United  States 
has  assumed  the  obligation  in  a number  of  treaties,®^  and  stat- 
utes®® have  provided  that  deserting  seamen  may  be  seized  on  ap- 
plication of  the  consul  of  a foreign  government  having  an  appro- 
priate treaty  with  the  United  States,  and  on  proof  of  desertion 
be  delivered  up  to  the  consul.  It  has  been  held  that  seamen  con- 
signed to  vessels  being  built  for  a foreign  government  and  still  in 
dry  dock  are  within  the  meaning  of  these  treaties  and  statutes.®® 

At  the  present  time,  international  law  imposes  no  duties  of 
vindication  on  states  in  time  of  peace,  although  it  requires  them 
to  observe  treaties  and  international  conventions,  imposing  new 
duties  of  this  character  upon  them.  The  rapid  multiplication  of 
these  treaties  in  recent  times  and  the  almost  universal  acceptance 
of  the  principles  of  some  of  them  indicate  that,  in  certain  fields, 
cooperation  and  mutual  aid  have  become  recognized  as  essential 
to  the  life  of  civilized  nations,  and  while  states  may  not  yet  be 
under  a legal  obligation  to  accede  to  such  treaties  or  the  princi- 
ples they  embody,  international  comity  certainly  imposes  a moral 
obligation  which  cannot  be  long  neglected.  The  rules  of  munici- 
pal law  enforcing  these  moral  obligations  of  cooperation  in  hu- 
manitarian and  industrial  matters  and  mutual  aid  in  the  sup- 
pression of  crime  are  therefore  closely  related  in  international 
importance  to  like  measures  enforcing  positive  legal  obligations 
of  international  law.  The  accession  to  treaties  of  this  kind  is  a 
purely  political  matter  and  beyond  the  control  of  municipal  law, 
but  the  usual  measures  for  enforcing  treaties  in  the  United 
States  apply  when  once  they  are  concluded. 

25See  Moore’s  Digest,  4;399-400. 

s^Tucker  vs.  Alexandroff,  183  U.  S.  424,  431,  467-469;  Cushing  Att.  Gen. 
6 op.  148,  209;  Moore  on  Extradition,  sec.  408;  Moore’s  Digest,  4;4i7-420. 

^’’This  provision  has  been  contained  in  fifty-two  treaties  with  thirty- 
five  countries. 

38Rev.  Stat.,  5280;  on  procedure,  see  Rev.  Stat.  sec.  4079-4081. 

s^Tucker  vs.  Alexandroff,  183  U.  S.  424. 


CHAPTER  VI.  OBLIGATIONS  OF  REPARATION 


INTRODUCTORY 

Reparation  is  a duty  owed  by  a state  in  case  of  a failure  to 
observe  any  of  its  obligations  under  international  law.  If  it  com- 
mits any  forbidden  acts  itself,  or  fails  to  prevent  its  subjects 
from  doing  so,  it  must  make  amends  to  the  injured  state  or  its 
subjects.  This  applies  to  violations  of  the  duties  of  states  when 
neutral  or  belligerent,  as  well  as  in  time  of  peace.  To  enumerate 
the  occasions  on  which  reparation  is  due  would,  therefore,  be  to 
recapitulate  practically  the  whole  of  this  paper.  It  is  not  the 
purpose  of  this  chapter  to  discuss  the  occasions  upon  which  the 
United  States  has  given  reparation,  but  rather  to  consider  the 
general  laws  by  which  the  duty  to  make  reparation  is  enforced. 

Like  all  obligations  of  international  law,  reparation  is  pri- 
marily a duty  of  states.  No  matter  who  the  perpetrator  of  the 
wrong,  whether  a private  person  or  a diplomatic  officer,  if  it  is  a 
breach  of  international  law  the  state  will  be  held  liable.  Viewed 
from  this  standpoint,  reparation  is  beyond  the  control  of  munici- 
pal law.  As  an  obligation  upon  the  sovereign  power,  municipal 
law  can  lend  no  effective  sanction,  although  it  can,  by  proper 
constitutional  agreements,  insure  a distinct  recognition,  both  na- 
tional and  international,  of  the  authority  which  is  to  be  consid- 
ered the  responsible  agent  of  sovereignty  in  this  respect,  and  can 
furnish  a machinery  whereby  the  demands  required  by  a just  ob- 
servance of  the  duty  of  reparation  may  be  made  known. 

Furthermore,  although  the  state  is  ultimately  held  respon- 
sible, material  reparation  may  often  be  had  more  expeditiously 
by  direct  recourse  to  the  private  person,  officer  or  department  of 
government  immediately  at  fault.  Municipal  law  may  enforce 
the  duty  of  such  persons  and  depiartments  to  make  reparation. 

It  is  true  that  the  municipal  enforcement  of  the  duty  to 
make  indemnity  incumbent  upon  the  immediate  perpetrators  of 
the  wrong  is  often  used  as  a basis  for  denying  the  duty  of  “repa- 
ration” altogether,  using  the  term  to  signify  solely  an  idemnifi- 
cation  by  the  government  of  the  state  at  fault.^  This  view  is  be- 

^See  especially  Secretary  of  State  Evarts  and  Secretary  of  State  Bay- 
ard, official  correspondence  on  Chinese  outrages,  1880-1885,  Moore’s  Di- 
gest, 6 ;82o-835. 


93 


94 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[94 


lieved  to  be  untenable.  If  a breach  of  international  law  has  been 
committed,  the  state  through  its  recognized  government  is  re- 
sponsible, no  matter  what  advantages  of  recourse  to  the  imme- 
diate party  at  fault  its  municipal  law  may  give.  The  duty  of  the 
government  to  make  reparation  can  only  be  escaped  by  proof 
that  the  tort  was  not  one  of  international  law.  If  it  is  admitted 
that  international  law  requires  a state  to  give  reasonable  protec- 
tion to  aliens  in  its  territory,  then  an  injury  to  such  aliens  by 
mob  violence  implies  an  obligation  of  reparation  and  indemnity 
by  the  government,  no  matter  what  remedies  from  the  immedi- 
ate perpetrators,  through  courts  of  justice,  municipal  law  may 
permit.  Escape  from  the  obligation  of  the  government  can  only 
be  based  on  a denial  of  the  statement  that  international  law  im- 
poses such  an  obligation  of  prevention. 

But  although  the  state  can  not  escape  the  obligation  to  make 
reparation  for  breaches  of  international  law,  through  its  govern- 
ment, this  does  not  prevent  it  providing  other  means  by  which 
the  injured  party  may  obtain  reparation,  through  municipal 
law.  Such  municipal  remedies  may  be  more  rapid  and  satisfac- 
tory to  all  parties  concerned  than  recourse  to  the  government 
through  diplomatic  channels.  If  satisfaction  is  obtained  from 
the  person  or  officer  guilty  the  state’s  duty  of  reparation  is  ful- 
filled, and  to  its  fulfillment  in  this  manner  municipal  law  may 
lend  a sanction.  The  question  may  therefore  be  treated  under 
two  heads,  (1)  reparation  by  the  national  government,  (2) 
reparation  by  inferior  governmental  divisions,  public  officers 
and  private  persons. 

REPARATION  BY  THE  NATIONAL  GOVERNMENT 

Under  the  constitution,  exclusive  control  of  foreign  relations 
is  in  the  hands  of  the  national  government  of  the  United  States. 
In  this  field  it  is  sovereign.  The  municipal  law  of  the  United 
States  can  not  compel  it  to  observe  its  duties  of  reparation.  On 
numerous  occasions  the  duty  has  been  recognized,  through  the 
voting  of  indemnities  by  congress,  the  authorization  of  salutes  to 
a foreign  fiag  or  public  apology,  but  it  has  been  done  as  a matter 
of  policy,  comity,  foreign  pressure  or  sense  of  international  obli- 
gation, not  from  any  coercion  of  municipal  law. 

Although  the  duty  of  the  national  government  to  make  rep- 
aration can  not  be  compelled  by  municipal  law,  the  probability 
of  the  duty  being  performed  will  be  greatly  increased  if  munici- 
pal law  (1)  places  no  obstacles  in  the  way  of  such  performance, 
and  (2)  establishes  a machinery  for  the  determination  and  set- 


95] 


IN  TIME  OF  PEACE 


95 


tlement  of  claims  for  reparation.  Municipal  law  may  thus  be  of 
great  importance  in  the  fulfillment  of  this  international  duty. 

(1)  The  obstacles  if  any  which  the  constitutional  system  of 
the  United  States  places  in  the  way  of  an  adequate  performance 
of  the  duties  of  reparation  will  be  considered  according  to  the 
character  of  those  duties.  Eeparation  may  take  the  form  of  (a) 
apology,  or  salute  of  a foreign  flag,  (b)  cession  of  territory,  (c) 
pecuniary  indemnity,  (d)  punishment  or  surrender  of  offenders, 
or  (e)  release  of  persons  held  in  custody  in  contravention  of  in- 
ternational law. 

(a)  Such  formal  modes  of  reparation  as  apology  and  salute 
of  the  flag  are  entirely  executive  in  nature.  The  president 
through  his  control  of  foreign  relations  exercises  unrestrained 
discretion  in  these  matters.^ 

(b)  Reparation  by  cession  of  territory  generally  results  from 
war.  The  United  States  demanded  such  indemnity,  although  it 
can  scarcely  be  called  reparation,  in  the  Mexican  and  Spanish 
wars,  but  it  has  never  made  cessions  for  this  reason  itself.  The 
power  to  cede  territory  is  generally  agreed  to  be  inherent  in  the 
treaty  power,  consequently,  if  necessary,  reparation  of  this  char- 
acter could  be  made  by  the  president  with  the  advice  and  con- 
sent of  two-thirds  of  the  senate.^ 

(c)  Pecuniary  indemnity  is  the  most  common  form  of  repa- 
ration, and  it  clearly  cannot  be  made  without  the  express  con- 
sent of  congress.  Congress  by  the  constitution  has  control  of  the 
purse,  and  consequently  no  indemnity  can  be  paid  without  an 
appropriation  by  it,  although  lump  appropriations  for  the  gen- 
eral purpose  of  settling  claims  might  be  voted,  to  be  expended  at 

2For  reparation  by  apology  see  The  Trent  Affair.  No  formal  apology 
was  made,  but  Great  Britain  recognized  the  return  of  Mason  and  Slidell 
and  Secretary  of  State  Seward’s  note  as’  equivalent  to  the  apology  de- 
manded. Moore’s  Digest,  7;77i.  For  reparation  by  salute  of  flag  see  case 
of  French  Consul  subpoenaed  in  San  Francisco,  Moore’s  Digest,  5;8o; 
case  of  The  Florida  seized  in  Brazilian  territorial  waters,  Moore’s  Digest, 
7;i09i;  Case  of  Spanish  consulate  attacked  at  New  Orleans,  Moore’s  Di- 
gest, 6;8i3. 

^Lattimer  vs.  Poteet,  14  Pet.  14.  There  has  been  dicta  to  the  effect 
that  the  consent  of  a state  is  necessary  before  any  of  its  territory  may  be 
ceded.  See  Geofroy  vs.  Riggs,  133  U.  S.  267;  Insular  cases,  182  U.  S.  345, 
though  in  this  case  the  court  admitted  that  territory  of  a state  might  be 
ceded  to  buy  peace  after  a disastrous  war  without  such  consent.  See  But- 
ler, Treaty  Making  Power,  i;4ii-4i3;  2;238,  287-294;  Moore’s  Digest,. 
5;i7i-i75. 


96 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[96 


executive  discretion.  As  the  steps  leading  to  reparation  and  the 
correspondence  on  the  subject  are  conducted  by  the  president, 
a failure  on  the  part  of  congress  to  appropriate  for  a reparation 
the  validity  of  which  had  been  admitted  by  the  executive,  might 
lead  to  serious  trouble.  As  a matter  of  fact  congress  appears  to 
have  followed  the  recommendations  of  the  president  in  this  re- 
spect.^ 

However,  the  probability  of  the  national  government  paying 
indemnities  depends  somewhat  upon  its  control  of  the  actual 
perpetrators  of  the  wrong.  The  breach  of  international  law 
may  have  been  through  an  act  of  the  national  government  itself 
or  an  agent  acting  under  express  authority,  in  which  case  no 
such  question  would  arise.  It  may  have  been  through  the 
unauthorized  act  of  an  officer  of  the  national  government  abroad 
or  within  the  territory  of  the  United  States.  As  such  officers 
if  military  or  naval  are  under  the  constant  control  of  the  gov- 
ernment through  courts  martial  and  military  law  and  if  civil 
are  under  executive  control  and  are  frequently  bonded,  the 
government  would  have  no  grounds  for  denying  its  responsi- 
bility from  this  cause. 

Where  the  offense  has  been  committed  by  a state  officer  or 
a private  citizen  within  the  territory  of  a state,  it  seems  to  be 
settled  that  the  constitution  does  not  bar  the  national  government 
from  prosecuting  the  offender  in  its  own  courts  if  his  act  violates 
international  law  or  a treaty.®  It  is  also  clear  that  no  such 
jurisdiction  may  be  exercised  unless  statutes  specifically  provide 
for  it.®  Statutes  have  provided  for  the  extension  of  the  jurisdic- 

^As  examples  of  pecuniary  indemnity  voted  by  congress,  see  Case  of 
Spanish  Consul,  Act,  Aug.  31,  1852,  10  Stat.  8g8;  Mch.  3,  1853,  10  Stat. 
262,  Moore’s  Digest,  6;8i4-8i8;  Rock  Springs  Anti  Chinese  Outrage,  Oct. 
19,  1888,  25  Stat.  565,566;  Italian  Lynchings,  New  Orleans,  1891,  Moore’s 
Digest,  6;84o;  Colorado,  June  8,  1896,  Moore’s  Digest,  841;  Hahnville, 
La.,  July  19,  1897,  30  Stat.  105,106;  Tallulah,  La.,  1899,  Moore’s  Digest, 
6;846;  Erwin,  Mass.,  Mch.  3,  1903,  33  Stat.  1032;  English  Seaman  injured. 
New  Orleans,  June  8,  1896;  Mexican  Lynching,  Yreka,  Cal.,  July  17,  1898, 
30  Stat.  653;  in  Texas,  March  3,  1901,  31  Stat.  loio. 

^W.  W.  Willoughby,  The  Am.  Const.  System,  N.  Y.,  1904,  p.  108;  E. 
S.  Corwin,  National  Supremacy,  N.  Y.,  1913;  U.  S.  vs.  Arjona,  120  U.  S., 
479,  (1887). 

®On  the  strictly  statutory  character  of  the  jurisdiction  of  federal 
courts  except  the  supreme  court  see  U.  S.  vs.  Worral,  2 Dali.  384,  (1798), 
and  general  terms  of  judiciary  act  of  1789,  Rev.  Stat.  687-750  granting 
less  jurisdiction  than  is  included  under  constitutional  provisions.  Somewhat 
contra  see  In  re  Debs,  158  U.  S.  564,  584,  saying,  “Every  government  is.  en. 


97] 


IN  TIME  OF  PEACE 


97 


tion  of  federal  courts  over  persons  violating  diplomatic  immuni- 
ties, and  over  a few  specified  offenses  against  foreign  states,^  but 
no  such  provision  has  been  made  where  the  offense  is  against  the 
general  rights  of  aliens  or  consuls  residing  within  the  country.  It 
is  not  surprising,  therefore,  that  for  offenses  of  this  character  the 
United  States  has  been  very  reluctant  to  admit  a duty  of  repara- 
tion. Where  it  can  not  punish  offenders,  or  take  measures  to  pre- 
vent a recurrence  of  outrages,  the  national  government  has  felt 
that  it  is  not  legally  responsible,  and  where  it  has  made  indem- 
nity has  done  so  as  a ‘‘gratuity”  rather  than  an  obligation.®  If, 
however,  as  appears  to  be  the  case,  international  law  imposes  a 
duty  of  preventing  injury  to  resident  aliens,  no  such  plea  will 
avail.  The  United  States  government  is  the  only  authority  with- 
in the  territory  of  the  United  States  known  to  foreign  states,  and 
will  be  held  responsible  for  violations  of  international  law  or 
treaties,  whether  it  in  fact  can  control  the  guilty  persons  or  not. 
It  therefore  seems  that  statutes  should  give  the  federal  courts  jur- 
isdiction over  offenders  of  this  character.® 

(d)  Frequently  the  injured  state  has  specifically  demanded 
the  punishment  of  offenders  as  reparation.^®  Here  also  the  con- 

trusted  by  the  very  terms  of  its  being  with  powers  and  duties  to  be  exer- 
cised and  discharged  for  the  general  welfare,  and  has  a right  to  apply  to 
its  own  courts  for  any  proper  assistance  in  the  exercise  of  the  one  and 
the  discharge  of  the  other.”  The  supreme  court  appears  to  have  an  in- 
herent jurisdiction  by  the  constitution  subject  to  the  power  of  congress  to 
limit  it,  but  as  positive  grants  of  jurisdiction  by  congress  are  held  to  nega- 
tive all  other  jurisdiction,  its  jurisdiction  in  reality  extends  no  further 
than  provided  by  statute.  See  U.  S.  vs.  Moore,  3 Cranch  159,170,172; 
Durousseau  vs.  U.  S.  6 Cranch  307,313;  Ex  Parte  McCardle,  7 Wall.  506, 

513. 

'^Supra,  p.  71  et  seq. 

®See  Diplomatic  correspondence  and  congressional  action  on  indem- 
nities for  injury  to  Spanish  consul,  1851,  Chinese  Outrages,  1880-1885,  Ital- 
ian Lynchings,  1891-1901,  etc.,  Moore’s  Digest,  6;8ii-849.  In  the  last  of 
the  Italian  cases  the  act  of  congress  Mch.  3,  1903,  33  Stat.  1032,  appro- 
priated $5,000  “out  of  humane  considerations  without  reference  to  the 
question  of  liability  therefor  to  the  Italian  Government.”  Moore’s  Digest, 
6 ;849. 

®See  Messages  Pres.  Harrison,  Dec.  9,  1891 ; Pres.  McKinley,  Dec.  5, 
1899,  Dec.  3,  1900,  Moore’s  Digest,  6 ;840,846-847,  in  which  such  legislation 
is  recommended. 

^®See  case  of  French  Privateers,  1811,  Moore’s  Digest,  6;8o9;  Chinese 
Outrages,  Denver,  Colo.,  1880,  Moore’s  Digest  6;82o;  Italian  Lynching, 
New  Orleans,  1891,  Moore’s  Digest,  6;838. 


98  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [98 

stitutional  division  of  power  between  state  and  national  govern- 
ments has  oifered  an  obstacle  to  the  performance  of  this  demand. 
In  the  case  of  army  and  naval  officers^  ^ and  civil  officers  of  the 
United  States  government,  misconduct  in  office  is  made  a crime 
against  the  United  States,  and  offences  by  such  officers  are  cog- 
nizable by  federal  courts.  The  same  is  true  of  persons  guilty  of 
violating  the  immunities  of  foreign  diplomatic  officers,  or  the 
obligations  of  neutrality,  and  a few  other  acts  forbidden  by  in- 
ternational law,  such  as  counterfeiting  foreign  securities.  No 
statutes  have,  however,  given  the  federal  courts  criminal  juris- 
diction of  persons  violating  rights  of  aliens  guaranteed  by  treaty 
or  international  law,  and  consequently  unless  the  state  govern- 
ment, which  cannot  feel  the  pressure  of  international  responsi- 
bility, chooses  to  prosecute  such  offenders,^^  the  duty  will  not  be 
performed.  The  constitution  undoubtedly  permits  such  an 
extension  of  federal  jurisdiction,  and  it  would  seem  that  the  ade- 
quate enforcement  of  international  obligations  demands  it. 

In  the  place  of  punishment  of  offenders  against  interna- 
tional rights,  states  have  sometimes  demanded  as  a reparation 
that  they  be  delivered  up  for  punishment  by  its  own  tribunals. 
This  was  demanded  by  the  Russian  Czar  upon  the  arrest  of  his 
ambassador  in  London  in  1708,^^  and  by  the  King  of  France  upon 
the  assault  of  his  secretary  of  legation  at  Philadelphia  in  1784.^* 
The  demand  was  refused  in  both  of  these  cases  and  it  seems  that 
no  such  obligation  of  reparation  exists  under  international  law. 
A state  may  extradite  fugitives  from  justice  in  its  territory  for 
offenses  committed  abroad, but  the  theory  of  territorial  sover- 
eignty upon  which  international  law  is  so  largely  based  places  it 
under  no  obligation  to  surrender  persons  for  acts  committed 

court  martial  punishment  of  the  commander  of  the  United 
States  vessel  Wachusett,  in  reparation  for  the  seizure  of  the  confederate 
cruiser  Florida  in  Brazilian  territorial  waters,  see  Moore’s  Digest,  7;i090. 

i2The  Continental  Congress  recommended  that  the  states  prosecute 
offenses  against  the  Law  of  Nations,  (Res.  Nov.  23,  1781,  Journ,  Cong., 
7;i8i,  Ford  ed.,  2i;ii37)  and  offered  to  pay  for  the  prosecution  of  such 
offenses,  (Res.  Aug.  2,  1779,  Ibid.,  51232,  Ford  cd.,  14 ,-914). 

^3  See  statement  of  this  case  in  Triquet  vs.  Bath,  3 Burr,  1478,  (K. 
B.  1764),  Scott,  6.,  Holland,  studies  in  international  law,  p.  187. 

^4Res  Publica  vs.  De  Longchamps,  i Dali,  iii,  (Pa.  1784). 

countries  which  adhere  to  the  theory  of  jurisdiction  by  nation- 
ality even  extradition  for  offenses  committed  abroad  is  refused  in  the  case 
of  their  own  subjects.  See  Italian  refusal  to  extradite  its  subjects  even 
when  no  exemption  was  specified  in  treaty.  Moore’s  Digest,  4)290-297. 
In  this  case  Italy  punished  the  persons  whose  extradition  was  asked. 


99] 


IN  TIME  OP  PEACE 


99 


within  its  own  jurisdiction.  To  do  so  would  be  to  acknowledge 
an  extra-territorial  effect  of  the  laws  of  the  foreign  country.  In- 
ternational law  may  require  a state  to  punish  offenders  as  a repa- 
ration for  international  wrongs,  but'it  does  not  require  it  to  sub- 
mit them  to  the  punishment  of  the  injured  state. 

(e)  On  several  occasions  the  release  of  officers  or  persons 
held  under  public  authority  has  been  the  form  of  reparation  de- 
manded. Where  the  person  is  held  by  tne  executive  or  judicial 
authority  of  the  national  government,  that  authority  can  grant 
release,  in  the  former  case  by  executive  action  as  in  the  Trent  af- 
fair of  1861  in  the  latter  by  writ  of  habeas  corpus  which  may 
be  instituted  by  executive  authority,  or  by  a direct  statutory  pro- 
hibition of  jurisdiction  as  in  the  case  of  foreign  diplomatic  of- 
ficers.^’' 

Where  the  person  is  held  by  authority  of  a state  court,  again 
an  obstacle  may  be  presented  to  the  effective  fulfilling  of  interna- 
tional duty,  as  was  illustrated  in  the  case  of  McLeod,’®  an  English 
soldier,  held  by  authority  of  the  state  of  New  York  for  an  alleged 
murder,  and  whose  release  was  demanded  by  Great  Britain.  In 
this  case  the  national  government  was  unable  to  effect  a release, 
and  as  a consequence  a statute’®  was  soon  after  passed  providing 
that  persons  held  by  state  authority  whose  release  was  demanded 
on  grounds  of  international  law  might  be  brought  before  the  fed- 
eral courts  on  habeas  corpus,  in  which  case  the  national  authori- 
ties might  upon  satisfactory  evidence  bring  about  a release.  The 
statutory  provisions  excluding  cases  against  diplomatic  agents 
from  the  jurisdiction  of  state  courts  altogether,  remove  this 
obstacle  from  the  release  of  such  persons  by  national  authority. 

It  seems  that  the  constitution  offers  no  obstacle  to  the  ob- 
servance of  all  national  duties  of  reparation.  The  principle  of 
national  supremacy  in  the  fields  constitutionally  delegated  to  the 
national  government,  including  foreign  relations,  permits  of  leg- 
islation by  congress  and  the  exercise  of  jurisdiction  by  federal 
courts,  “necessary  and  proper”  to  fulfill  all  duties  required  by 
international  law  or  treaty.^®  However,  additional  legislation  to 

release  of  Mason  and  Slidell  as  a reparation  for  their  illegal 
seizure  from  the  British  vessel  Trent,  see  Moore’s  Digest,  7 ',768-770. 
i^Act,  Apr.  30,  1790,  I Stat.  117,  Rev.  Stat.  sec.  4063-4064. 
i®People  vs.  McLeod,  25  Wend.  483,  (N.  Y.  1841)  in  which  an  appli- 
cation for  a writ  of  habeas  corpus  was  refused  by  the  state  court.  See 
Moore’s  Digest,  2 ',24-25. 

i^Act,  Aug.  29,  1842,  Rev.  Stat.  753,  Moore’s  Digest,  2130. 

20See  Pomeroy,  J.  N.,  An  introduction  to  the  Constitutional  law  of 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


100 


[100 


make  some  of  this  constitutional  power  effective  seems  to  be  nec- 
essary. 

(2)  The  fulfillment  of  the  duty  of  reparation  may  be  se- 
cured by  the  provision  of  an  adequate  machinery  for  prosecut- 
ing claims  for  reparation.  The  final  method  for  prosecuting  any 
claim  for  reparation  is  the  resort  to  force  by  way  of  intervention, 
reprisal  or  war.  Observance  of  the  ‘‘duty”  of  reparation,  if  it 
can  be  called  a duty  under  such  coercion,  is  a matter  of  policy 
and  certainly  requires  no  additional  sanction  from  municipal 
law.  We  have  to  do  solely  with  the  duty  of  making  repartion  for 
acknowledged  breaches  of  international  law. 

The  prosecution  of  claims  for  reparation  may  be  by,  (a)  judi- 
cial means  provided  by  municipal  law,  (b)  diplomacy,  or  (c) 
arbitration. 

(a)  By  an  act  of  1855^^  a court  of  claims  was  established,  at 
first  as  an  advisory  body,  but  later^^  as  a court  with  power  to  com- 
pel payment  of  money  from  general  appropriations  for  that  pur- 
pose. Aliens  are  permitted  to  prosecute  suits  in  the  court  of 
claims  if  their  government  accords  a like  privilege  to  the  United 
States  citizens,  and  most  European  governments  have  been  in- 
cluded in  this  class.-^  The  jurisdiction  of  the  court  extends  over 
claims  founded  on  acts  of  congress,  executive  regulations,  con- 
tracts express  or  implied  with  the  United  States,  damage  cases 
not  sounding  in  tort  and  all  claims  referred  to  it  by  either  house 

the  United  States,  gth  ed.,  N.  Y.,  i88|6,  p.  571  Corwin,  E.  S.,  National 
Supremacy,  N.  Y.,  1913,  passim. 

2iAct,  Feb.  24,  1855,  10  Stat.  612. 

““Act,  Mch.  3,  1863,  12  Stat.  765.  Under  this  act  the  court  was  still 
simply  advisory,  as  the  Secretary  of  the  Treasury  had  a discretionery 
power  to  revise  its  decision ; consequently  the  supreme  court  refused  the 
appellate  jurisdiction  given  to  it.  (Gordon  vs.  U.  S.,  2 Wall.  561).  This 
difficulty  was  remedied  by  the  act  of  Mch.  17,  1866,  see  also  Tucker  act, 
Mch.  2,  1887,  24  Stat.  505,  U.  S.  Rev.  Stat.  1059,  1089,  Judicial  Code,  1911, 
36  Stat.  1087,  sec.  142,180. 

23Act,  July  27,  1868,  15  Stat.  243;  Rev.  Stat.  1068.  Judicial  Code 
Privileges  accorded  subjects  of  Great  Britain,  (U.  S.  vs.  O’Keefe,  ii 
Wall.  178;  Carlisle  vs.  U.  S.  16  Wall.  147)  Belgium,  (DeGive  vs.  U.  S. 
7 Ct.  Cl.  517)  ; France,  (Rothschild  vs.  U.  S.  6 Ct.  Cl.  204;  Dauphin  vs. 
U.  S.  6 Ct.  Cl.  221)  ; Italy,  (Fichera  vs.  U.  S.  9 Ct.  Cl.  254)  ; Prussia, 
(Brown  vs.  U.  S.  5 Ct.  Cl.  571)  ; Spain,  (Molina  vs.  U.  S.  6 Ct.  Cl.  571)  ; 
Switzerland,  (Lobsiger  vs.  U.  S.  5 Ct.  Cl.  687).  See  Roger  Foster,  A 
Treatise  on  Federal  Practice,  Civil  and  Criminal,  5th  ed.,  3 vols.,  Chi- 
cago, 1913,  3 12309. 


IN  TIME  OF  PEACE 


101 


101] 

of  congress."^  It  is  expressly  stated,  however,  that  the  jurisdic- 
tion does  not  extend  to  claims  “growing  out  of  or  dependent 
upon  treaty  stipulations  entered  into  with  foreign  nations  or  with 
Indian  tribes. As  the  court’s  jurisdiction  is  limited  to  the  ex- 
press terms  of  statute  it  does  not  extend  to  claims  based  on  gen- 
eral international  law.  The  court  therefore  could  not  aid  in  en- 
forcing the  national  duty  of  reparation  unless  congress  had  first 
acted,  except  in  so  far  as  the  obligation  to  pay  contract  debts 
may  be  considered  a duty  of  international  law. 

(b)  Diplomatic  representation  is  the  most  frequent  method 
of  presenting  demands  for  reparation.  These  must  be  presented 
to  the  Department  of  State  and  must  come  from  a foreign  gov- 
ernment through  its  diplomatic  representative  in  the  United 
States.^®  The  Department  of  State  will  not  listen  to  a claim  pre- 
sented by  a foreign  private  person  and  congress  will  not  con- 
sider any  alien  claims  not  coming  through  the  Department  of 
State.^^  The  action  of  the  Department  of  State  upon  claims  is 
entirely  discretionary,  and  its  recommendation  to  congress  al- 
though generally  followed  has  no  controlling  effect.  Congress 
having  acted,  it  would  seem  that  the  payment  of  claims  becomes 
a purely  administrative  act  and  the  foreign  claimant  can  have 
recourse  to  the  court  of  claims  on  the  authority  of  this  statute, 
or  to  an  action  of  mandamus  to  compel  payment  by  the  Secretary 
of  the  Treasury  or  the  Secretary  of  State. 

(c)  The  conclusion  of  arbitration  treaties  and  the  determi- 
nation to  submit  any  particular  claim  to  arbitration  are  political 
questions  and  beyond  the  power  of  municipal  law  to  control.  The 
United  States  has  concluded  a large  number  of  special  as  well  as 
general  arbitration  treaties.^®  The  former  usually  specify  the 
procedure  to  be  observed  and  the  subjects  to  be  submitted  to  the 
jurisdiction  of  the  arbitral  court.^^  The  latter  provides  that  all 

24Act,  Feb.  24,  1855,  10  Stat.  612;  Rev.  Stat.  1059.  Judicial  Code,  Act,. 
Mch.  3,  1911,  36  Stat.  1087,  sec.  145,  District  courts  now  exercise  a con- 
current jurisdiction  in  these  matters,  Ibid.,  sec,  24, 

25Act,  Mch.  3,  1863,  12  Stat.  765,  sec.  9,  Judicial  Code,  1911,  36  StaC 
1087,  sec.  153. 

2®U.  S.  vs.  Diekelman,  92  U.  S.  520,  Moore’s  Digest,  61607-609. 

27Magoon’s  Reports  338;  see  also  43  Cong.,  ist  Sess.,  Report  No.  496,. 
committee  on  war  claims.  May  2,  1874;  Moore’s  Digest,  6;6o8. 

28Supra,  p.  26,  note  18. 

29It  has  been  held  that  decisions  of  an  arbitral  court  beyond  its  com- 
petence as  defined  by  treaty  are  void.  See  Comegys  vs.  Vasse,  i Pet. 
193;  Trevall  vs.  Bache,  14  Pet.  95;  'Judson  vs.  Corcoran,  17  How.  612; 
Moore’s  Digest,  7;30-33. 


102  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [102 

questions  of  a class  or  all  questions  except  those  of  a specified 
class  shall  be  submitted  to  arbitration,  yet  although  treaties  are, 
by  the  constitution,  the  law  of  the  land,  cases  do  not  come  before 
arbitral  tribunals  automatically.  The  submission  of  any  case  is  a 
political  question,  upon  which  the  executive  power  of  the  govern- 
ment has  discretion. 

A claim  having  been  submitted  to  arbitration  and  an  award 
given,  the  matter  is  subject  to  enforcement  by  municipal  law.  It 
has  been  held  that  an  arbitral  decision  is  final  and  as  binding  on 
the  courts  as  an  act  of  congress.^®  It  would  therefore  seem  that 
the  payment  of  the  award  is  purely  administrative  in  character, 
and  can  be  compelled  by  mandamus.  This  however  is  not  true  in 
<3ases  in  which  the  award  has  been  for  the  United  States,  and  its 
‘Citizens  claim  payment.  If  it  develops  that  fraud  was  practiced, 
the  United  States  government  can  reopen  the  whole  matter  and 
refuse  payment  to  its  citizens.^^  The  arbitral  decision  is  res  jud- 
icata as  between  the  governments,  but  not  as  between  the  govern- 
ment and  its  own  subjects. 

Although  the  submission  of  questions  to  arbitration  even 
under  general  treaties  is  a political  question  and  beyond  the  con- 
trol of  municipal  law,  the  establishment  of  a mode  of  procedure 
by  means  of  such  treaties  and  of  a permanent  panel  of  judges  as 
is  provided  by  the  Hague  conventions  undoubtedly  affords  an  im- 
portant sanction  to  the  equitable  fulfillment  of  duties  of  repara- 
tion. The  establishment  of  a permanent  court  of  arbitration  with 
recognized  jurisdiction,  as  was  attempted  and  notably  favored 
by  the  United  States’  delegation  at  the  second  Hague  conference, 
would  add  an  even  more  effective  sanction  of  similar  character. 

REPARATION  BY  INFERIOR  GOVERNMENTAL  DIVISIONS,  PUBLIC  OFFI- 
CERS, AND  PRIVATE  PERSONS 

As  has  been  stated,  the  national  government  of  the  United 
States  is  primarily  responsible  for  all  breaches  of  international 
law  by  itself  or  its  citizens  and  reparation  for  such  torts  may  al- 
ways be  expected  from  it.  This  does  not,  however,  prevent  the 
injured  party  seeking  reparation  from  inferior  governmental  or- 
gans, officers,  or  individuals.  We  may  therefore  consider  the  mu- 

soComegys  vs.  Vasse,  i Pet.  193,  212.  La  Ninfa,  75  Fed.  Rep.  513, 
<189,6). 

^iprelinghuysen  vs.  Key,  no  U.  S.  63;  Boynton  vs.  Blaine,  139  U.  S. 
306;  U.  S.  vs.  LaAbra  Silver  Mining  Co.,  32  Ct.  Cl.  462,  (1897)  ; LaAbra 
Silver  Mining  Co.  vs.  U.  S.,  175  U.  S.  423,  (1899).  See  Moore’s  Digest, 
7;65-68. 


103] 


IN  TIME  OP  PEACE 


103 


nicipal  measures  enforcing  the  duty  of  such  persons  to  make 
reparation. 

(1)  The  constitution  permits  the  extension  of  the  jurisdic- 
tion of  federal  courts  to  controversies  ‘ ‘ between  a state  or  the  citi- 
zens thereof,  and  foreign  states,  citizens  or  subjects, hut  not 
to  “suits  in  law  or  equity  commenced  or  prosecuted  against  one 
of  the  United  States  * * by  citizens  or  subjects  of  any  foreign 
state. The  exemption  does  not  extend  to  suits  prosecuted  by 
foreign  states.  It  therefore  seems  that  so  far  as  the  constitution 
is  concerned,  a foreign  state  could  bring  action  for  reparation 
against  one  of  the  commonwealths  of  the  union  in  the  federal 
courts  although  its  subjects  acting  individually  could  not.  The 
statutes,  however,  have  not  provided  for  such  a jurisdiction ; con- 
sequently there  have  been  no  such  actions.  Foreign  states  have  al- 
ways asserted  that  the  government  of  the  United  States  is  the  only 
authority  recognized  by  them  as  responsible,  and  have  refused  to 
have  direct  recourse  to  state  governments,  even  when  the  state  has 
offered  to  make  indemnity.^^ 

Some  states  have  established  courts  of  claims  in  which  they 
may  be  sued  under  limitations,^^  and  a number  of  them  have  pro- 
vided by  law  for  the  responsibility  of  cities  and  counties  for  prop- 
erty losses  and  lynchings.^®  These  methods  of  recovery  are  open 

32Constitution,  art.  3,  sec.  2,  cl.  i. 

^^Constitution,  Amendment  ii. 

34See  case  of  French  Privateers,  1811,  in  which  the  State  of  Georgia 
offered  to  make  indemnity  for  injury  to  French  seamen  in  Savannah. 
Moore’s  Digest,  6)809. 

ssfllinois  Act,  Mch.  23,  1819,  Laws  1819,  p.  184;  Act,  Jan.  3,  1829,  Rev. 
Laws,  1832,  p.  593,  repealed  Rev.  Stat.  1845,  P-  4^4,  permitting  the  audi- 
tor of  Public  Accounts  to  be  sued  for  the  state.  111.  Act,  May  29,  1877, 
laws,  1877,  p.  64,  creating  a commission  of  claims  “to  hear  and  deter- 
mine all  unadjudicated  claims  of  all  persons,  against  the  state  of  Illinois” 
and  submit  them  to  the  auditor  of  public  accounts  who  is  to  lay  them  before 
the  general  assembly.  111.  Act,  May  16,  1903,  laws  1903,  p.  140,  creating  a 
court  of  claims  with  a similar  authority.  See  N.  Y.  Laws,  1870,  c.  321 ; 
1876,  C.444;  1883,  C.205;  1897,  C.36;  Mass.  Rev.  Laws,  c.201.  See  Freund, 
Cases  on  Administrative  Law,  St.  Paul,  1911,  p.  363-367. 

36As  examples,  see  111.  Rev.  Stat.  1913,  c.38,  sec.  256a-256g,  p.  854,  mak- 
ing a city  or  county  liable  for  three-fourths  damages  for  property  losses 
caused  by  a mob  of  over  twelve  persons,  with  the  proviso  that  such  liabil- 
ity does  not  prevent  recovery  from  individual  perpetrators ; c.28,  sec.  256W, 
p.  857,  creating  a liability  of  $5000  upon  counties  and  cities  for  lynchings, 
recoverable  by  the  survivors  of  the  person  lynched. 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


104 


[104 


to  aliens  or  foreign  sovereigns  under  the  usual  provisions  open- 
ing courts  to  such  persons. 

(2)  Eecourse  against  private  persons  or  officers  of  govern- 
ment may  be  had  by  either  foreign  individuals  or  sovereigns.^^ 
Such  suits  may  also  be  commenced  in  the  name  of  a foreign 
state.^®  Foreign  states  or  persons  bringing  such  suits  have  the 
advantage  of  the  usual  principles  of  law  applicable  to  suits 
brought  for  the  recovery  of  claims  or  damages  by  citizens.^®  The 
foreigner  in  such  a case  has  the  additional  advantage  of  an  op- 
tion in  bringing  his  case  in  either  the  state  or  federal  courts.  By 
the  constitution  the  jurisdiction  of  the  federal  courts  may  be  ex- 
tended to  controversies  ‘‘between  a state  or  the  citizens  thereof, 
and  foreign  states,  citizens  or  subjects,”  and  statutes  have  pro- 
vided for  the  exercise  of  this  jurisdiction  as  to  such  suits  against 
citizens.^® 

The  usual  principles  of  liability  of  officers  apply  in  suits 
brought  by  aliens  as  well  as  by  citizens.  In  principle  Anglo- 
American  law  considers  officers  liable  for  wrongful  acts,  in  which 
case  they  would  be  liable  for  torts  violating  international  rights 
of  foreign  states  or  persons.^^.  The  tendency,  however,  is  to  re- 
lieve officers  from  such  liability  either  by  statute  or  judicial  deci- 

2^King  of  Spain  vs.  Oliver,  2 Wash.  C.C.  429. 

38The  Saphire,  ii  Wall  164  and  Moore’s  Digest,  2 ;85-87.  English 
cases,  U.  S.  vs.  Prioleau,  35  L.  J.  Ch.  N.  S.  7,  (1865)  ; U.  S.  vs.  McRae,, 
L.  R.  8 Eq.  69,  (1869)  ; Moore’s  Digest,  i ;65-66. 

3»Cushing,  Att.  Gen.,  7 op.  229,  (1885)  ; Taylor  vs.  Carpenter,  3 Story 
458;  State  vs.  Chue  Ean,  42  Eed.  Rep.  865;  Crashley  vs.  Press  Pub.  Co.,. 
179  N.  Y.  27,  (1904)  ; Moore’s  Digest,  4;7-9. 

^^Constitution  art.  3,  sec.  2,  cl.  i.  United  States  district  courts  have 
jurisdiction  of  civil  suits  where  the  matter  of  controversy  is  over  $3,000 
“between  citizens  of  a state  and  foreign  states,  citizens  or  subjects,”  (Ju- 
dicial Code,  1911,  36  Stat.  1087,  sec.  24,  cl.  i)  and  “of  all  suits  brought  by 
any  alien  for  a tort  only  in  violation  of  the  Law  of  Nations  or  of  a treaty 
of  the  United  States”  (Ibid,  sec.  24,  cl.  17).  All  suits  of  which  district 
courts  have  original  jurisdiction,  or  in  which  the  parties  are  of  diverse 
citizenship  and  there  is  danger  of  local  prejudice,  may  be  removed  from 
state  courts  to  U.  S.  district  courts  by  motion  of  the  defendant.  (Ibid.  sec. 
28).  Most  of  these  provisions  were  in  the  Judiciary  act  of  1789,  Rev.  Stat. 
sec.  563,  cl.  16,  sec.  629,  cl.  i.  Removal  of  cases  involving  aliens  to  cir- 
cuit courts  was  provided  in  an  act  of  Aug.  13,  1888,  25  Stat.  434,  sec  2,  on 
which  see  New  Orleans  Co.,  vs.  Rabasse,  10  So.  708,  Breedlove  vs.  Nicolet, 
7 Pet.  413.  The  circuit  courts  were  abolished  by  the  judicial  code  of  1911,. 
sec.  289. 

^^Little  vs.  Barreme,  2 Cranch  170,  (1804). 


105] 


IN  TIME  OF  PEACE 


105 


sion  when  they  act  in  good  faith,  the  state  sometimes  assuming 
the  liability  in  such  cases.  The  responsibility  of  private  persons 
would  be  governed  by  the  law  of  torts  and  contracts  of  the  state 
where  the  action  was  brought,  the  same  remedies  generally  being 
open  to  the  alien  as  to  a citizen.^^ 

^^See  reference  to  this  mode  of  indemnification  in  letter  of  Secretary 
of  State  B’ayard,  For.  Rel.  1886,  p.  158,  in  reference  to  Chinese  Outrages 
at  Rock  Springs,  Wyo,,  1885,  in  which  reference  is  also  made  to  the  right 
of  aliens  to  remove  cases  to  federal  courts.  Moore’s  Digest,  6;83i-832. 


PART  II.  OBLIGATIONS  AS  A NEUTRAL 
TOWARD  BELLIGERENTS 

CHAPTER  VII.  INTRODUCTORY 

The  obligations  of  neutral  states  have  been  classified  by  Hol- 
land^ as  obligations  of  (1)  abstention,  (2)  acquiescence  and  (3) 
prevention.  To  these  Lawrence-  adds  two,  the  duties  of  (4)  res- 
toration and  (5)  reparation. 

(1)  The  obligations  of  abstention  peculiar  to  neutrality  re- 
late to  matters  which  the  state  itself  must  obstain  from  doing,  and 
are  outside  of  the  jurisdiction  of  municipal  law.  Whether  a 
state  by  performing  its  duties  of  abstention  shall  remain  a neu- 
tral, or  whether  by  refusing  to  perform  them  it  intervenes  and 
thus  itself  becomes  a belligerent  is  a question  which  is  always  to  be 
determined  by  the  political  departments  of  the  goverment.  Mun- 
icipal law  can  not  in  any  way  effect  the  power  of  the  state  thus  to 
exercise  its  sovereignty.  It  may  be  noted  that  certain  acts  of  ab- 
stention are  specifically  required  by  one  of  the  Hague  conventions 
of  1907.  Thus  neutral  states  are  required  to  abstain  from  partial- 
ity in  dealing  with  belligerents,  from  supplying  belligerent 
powers  with  ‘‘warships,  ammunition,  or  war  material  of  any 
kind,”  and  from  partiality  in  applying  “conditions,  restrictions 
and  prohibitions”  upon  the  admission  of  belligerent  warships  or 
prizes  into  their  territorial  waters.^  By  the  constitution'^  treaties 
are  declared  to  be  a part  of  the  law  of  the  land;  consequently 
these  provisions  might  be  regarded  as  rules  of  municipal  law.  In 
reality,  as  they  are  directory  upon  the  state  itself  they  can  not  be 
enforced  by  any  regularly  constituted  state  authority,  so  scarcely 
deserve  that  title.  They  are  rules  directory  upon  the  political 
organs  of  government,  but  are  not  enforceable  rules  of  municipal 
law.  The  duties  of  obstention  discussed  under  the  law  of  peace 
likewise  apply  to  states  in  time  of  neutrality. 

IT.  E.  Holland,  Neutral  Duties  in  Maritime  War,  Proceedings  of  the 
British  Academy,  2;2,  quoted  Moore’s  Digest,  7;863. 

2T.  J.  Lawrence,  The  Principles  of  International  Law,  4th  ed.,  N.  Y., 
1910,  p.  629. 

^Hague  Conventions,  1907,  v,  art.  9,  xiii,  arts.  6,  9. 

^Constitution,  art.  vi,  sec.  2. 


106 


107] 


OBLIGATIONS  OF  NEUTRALS 


107 


(2)  The  neutral  state’s  obligations  of  acquiescence  are  en- 
tirely passive.  They  require  the  state  to  submit  without  protest 
to  incidental  inconveniences  and  detractions  from  its  ordinary 
rights  under  international  law  caused  by  the  operation  of  ac- 
knowledged privileges  of  belligerents.  The  most  prominent  of 
these  inconveniences  is  the  loss  to  its  subjects  which  results  from 
the  exercise  of  belligerent  rights  in  interfering  with  maritime 
commerce  such  as  the  right  of  visit  and  search,  seizure,  and  con- 
fiscation after  adjudication  for  breach  of  blockade,  contraband 
trade,  unneutral  service  and  similar  acts.  A neutral  state  must 
also  acquiesce  in  occasional  losses  by  its  citizens  resident  in  bel- 
ligerent countries,  when  such  losses  are  incidental  to  the  conduct 
of  hostilities.  The  duty  of  acquiescence  simply  requires  the  ac- 
knowledgment by  the  neutral  state  that  the  ordinary  rights  of  its 
citizens  under  international  law  are  modified  in  their  relations 
with  a belligerent  community  or  state.  The  form  which  a breach 
of  this  duty  would  take  would  be  the  making  of  unwarranted  dip- 
lomatic protests  or  intervention.  As  in  the  case  of  abstention 
both  of  these  acts  are  prerogatives  of  sovereignty  and  incapable 
of  limitation  by  municipal  law.  The  duties  of  acquiescence  con- 
nected with  exemptions  from  territorial  jurisdiction  and  servi- 
tudes apply  to  states  in  neutrality  as  well  as  in  peace. 

(3)  The  duty  of  prevention  requires  a state  to  prevent  un- 
neutral acts  by  its  citizens  and  agencies  of  government,  and  the 
unneutral  use  of  its  territory.  It  is  in  this  field  that  municipal 
law  is  most  essential  for  the  preservation  of  neutral  obligations. 

(4)  The  duty  which  Lawrence  has  in  mind  when  he  speaks 
of  ‘‘restoration”  is  the  duty  which  a neutral  state  is  under  to  re- 
store to  the  original  owner^  prizes  captured  in  its  waters  or 
illegally  brought  to  its  ports.  It  seems  that  the  use  of  the  term 
restoration  as  describing  this  duty  is  unfortunate  as  it  im- 
plies that  the  duty  is  one  owed  to  the  power  to  whom  the  prize  is 
restored.  If  this  were  true,  if  the  owner  of  the  vessel  captured 
in  violation  of  neutrality  had  a right  to  its  restoration,  he  could 
make  his  claim  if  the  vessel  were  in  the  custody  of  a belligerent  as 
well  as  a neutral  prize  court.  This,  however,  is  not  the  case.  It 
is  a recognized  principle  that  the  owner  of  the  vessel  can  not 
claim  restoration  in  a belligerent  prize  court,  on  the  ground  that 
the  seizure  was  in  violation  of  the  neutrality  of  a third  state.®  The 

^Lawrence,  op.  cit,  p.  649, 

6“A  capture  within  neutral  waters  is,  as  between  enemies,  deemed  to 
all  intents  and  purposes  rightful ; it  is  only  by  the  neutral  sovereign  that 


108  INTERNATIONAL  LAW  AND  MUNICIPx\L  LAW  [108 

prize  is  restored  not  as  a reparation  to  the  state  from  which  it 
was  taken,  but  as  a vindication  of  its  own  neutral  rights  by  the 
neutral  state/  Like  international  cooperation  and  the  extradi- 
tion of  criminals,  it  is  an  obligation  growing  out  of  the  general 
interest  of  humanity  which  requires  the  greatest  possible  restric- 
tion of  the  area  of  war.  Unlike  them,  however,  it  is  a duty  re- 
quired by  international  law  even  in  the  absence  of  treaty  stipula- 
tions, and  reparation  may  be  demanded  in  case  of  failure  to  ob- 
serve it.®  We  will  therfore  include  the  duties  which  Lawrence 
discusses  as  duties  of  ‘‘restoration”  in  the  subject  “obligations  of 
vindication.  ’ ’ There  are  other  obligations  which  will  logically  be 
included  in  this  subject,  such  as  that  to  intern  belligerent  troops 
entering  neutral  territory  and  to  enforce  observation  of  the 
twenty-four  hour  stay  and  twenty-four  hour  interval  rules  by 
belligerent  vessels  taking  asylum  in  its  ports. 

(5)  The  duty  of  reparation  refers  to  the  obligation  which  a 
neutral  state  is  under  to  make  suitable  amends  to  the  injured  bel- 
ligerent for  a failure  to  perform  any  of  its  other  duties  as  a neu- 
tral. The  reparation  may  assume  the  forms  of  payment  of  dam- 
ages, restoration  of  property  or  public  apology.  The  payment  by 
Great  Britain  of  the  Alabama  claims  award  in  1871  is  a classic 

its  legal  validity  can  be  called  in  question ; and  as  to  him  only  it  is  to  be 
considered  void.”  The  Ann,  3 Wheat  435,  447,  (1818).  See  also,  The 
Adela,  6 Wall.  266,  (1867)  ; The  Sir  Wm.  Peel,  5 Wall.  535;  The  Lilia,  2 
Sprague,  177;  The  Florida,  loi  U.  S.  37,  (1879).  English  cases,  The  Eliza 
Ann,  I Dods.  244,  (1813)  ; The  Purissima  Conception,  6 Rob.  45,  (1805)  ; 
The  Diligentia,  i Dods.  404,  412,  (1814)  ; The  Etrusco,  Lords,  1795,  3 Rob. 
31 ; The  Vrouw  Anna  Catherina,  5 Rob.  144.  See  Scott,  Cases,  pp.  684- 
691;  Moore’s  Digest,  6;iooo,  7;5ii,io89. 

the  property  has  been  captured  within  the  jurisdiction  of  the  neu- 
tral, the  neutral  “may  indeed  inflict  pecuniary  or  other  penalties  on  the 
parties  for  such  violation ; but  it  then  does  it  professedly  in  vindication  of 
its  own  rights,  and  not  by  way  of  compensation  to  the  captured.”  La  Ami- 
stad  de  Rues,  5 Wheat.  385.  See  also  La  Estrella,  4 Wheat.  298,  (1819)  ; 
The  Santissima  Trinidad,  7 Wheat.  283,496.  Fenwick,  op.  cit.  p.  90,  says: 
“Where  vessels  have  been  fitted  out  and  armed  or  have  increased  their 
force,  in  violation  of  the  neutrality  of  the  United  States,  the  courts  of  the 
United  States  will  intervene  to  effect  a restitution  of  prizes  captured  by 
such  vessels,  not  because  the  capture  is  illegal  as  between  the  captor  and 
the  former  owner,  but  because  the  neutral  state  has  the  right  to  vindicate 
its  own  sovereignty  by  divesting  possession  of  property  acquired  as  the  re- 
sult of  a violation  of  its  sovereignty.” 

^Commodore  Stewart’s  Case,  i Ct.  Cl.  113,  (1864),  Scott,  910.  Infra 
p.  134,  note  25. 


OBLIGATIONS  OF  NEUTRALS 


109 


109] 


example  of  the  performance  of  this  duty.  There  are  no  duties 
of  reparation  peculiar  to  the  law  of  neutrality.  The  provisions 
of  United  States  law  enforcing  this  duty  in  time  of  peace  apply 
equally  well  to  the  enforcement  of  obligations  arising  in  time  of 
neutrality. 

We  will  then  consider  the  municipal  measures  enforcing  the 
obligations  of  the  United  States  as  a neutral  under  two  heads, 
(1)  the  obligations  of  prevention,  and  (2)  the  obligations  of  vin- 
dication. 

It  is  probably  desirable  to  present  in  more  detail  the  basis  of 
distinction  between  these  two  classes  of  duties.  The  duty  of  pre- 
vention differs  from  the  duty  of  vindication  in  that  the  former 
relates  to  certain  obligations  a neutral  state  is  under  in  reference 
to  its  own  subjects  and  territory,  while  the  latter  is  concerned 
with  the  treatment  of  foreign  subjects  and  agencies  of  govern- 
ment. International  law  does  not  define  the  means  which  a state 
must  take  in  performing  its  duties  of  prevention.  It  is  of  no  in- 
ternational importance  whether  it  chooses  to  control  its  subjects 
and  the  use  of  its  territory  by  means  of  criminal  penalties,  re- 
quirements of  bonds  or  other  guarantees,  or  the  use  of  military 
force ; so  long  as  it  exercises  ‘ ‘ due  diligence  ’ ’ or  ‘ ‘ the  means  at 
its  disposal,”  the  methods  are  entirely  a matter  of  internal  pol- 
icy. On  the  other  hand,  in  performing  the  duty  of  vindication 
the  state  is  dealing  with  persons  who  are  not  its  own  subjects. 
It  is  really  acting  as  an  agent  of  the  society  of  nations  to  adjudi- 
cate a breach  of  international  law.  Consequently  that  society  is 
interested  in  the  method  of  treating  these  violators  of  interna- 
tional duty,  and  specifies  in  international  law  that  illegal  prizes 
shall  be  restored,  belligerent  troops  shall  be  interned,  vessels  ille- 
gally in  ports  shall  be  expelled  or  sequestrated,  etc. 

In  general,  therefore,  the  municipal  rules  enforcing  duties 
of  prevention  consist  of  rules  supplementary  to  international  law, 
while  those  enforcing  duties  of  vindication  consist  of  rules  of  in- 
ternational law  which  are  also  rules  of  municipal  law. 

It  may  be  added  that  the  same  act  may  entail  obligations  of 
both  kinds.  A neutral  state  may  be  required  to  prevent  a speci- 
fied infraction  of  its  neutrality.  If  it  is  unsuccessful  in  prevent- 
ing this  act,  it  may  be  required  to  vindicate  its  neutrality  in  a 
particular  manner.  .Thus  a neutral  state  is  under  an  obligation 
to  prevent  hostilities  in  its  territorial  waters.  Yet  if  a prize  is 
there  taken  in  spite  of  its  efforts,  the  duty  of  vindication  requires 
it  to  adjudicate  this  prize  and  restore  it  to  its  situation  before 
capture. 


CHAPTER  VIII.  OBLIGATIONS  OF  PREVENTION. 


TREATY  PROVISIONS 

(1)  The  United  States  has  recognized  certain  duties  of 
prevention  as  incumbent  upon  it  by  treaty.  Many  of  the  early 
treaties  of  the  United  States  contain  an  article  stipulating  for 
the  preservation  of  “perpetual  peace  and  amity”  between  the 
two  parties.^  In  Henfield’s  case,^  which  arose  in  1793,  such 
provisions  in  the  treaties  with  Netherlands^,  Prussia^,  and  Great 
Britain^  were  made  one  of  the  bases  for  the  government  prose- 
cution of  a person  accused  of  accepting  a commission  from 
France  who  was  at  war  with  these  countries.  General  princi- 
ples of  international  law  were  also  relied  on  in  the  case,  but 
the  main  support  for  the  indictment  seemed  to  be  that  Hen- 
field’s  acts  were  prohibited  by  these  treaties,  which  were  law 
in  the  United  States.  Though  the  court  accepted  this  view  at 
that  time,  it  is  clear  that  criminal  indictments  could  no  longer 
be  supported  under  such  general  treaty  provisions®,  and  as  a 
matter  of  fact  few  treaties  now  in  force  contain  the  perpetual 
peace  and  amity  clause  in  the  mandatory  form  it  assumed  in 
the  early  treaties. 

By  another  common  provision  in  early  treaties  the  con- 
tracting parties  bound  themselves  when  neutral  to  prevent  their 

^As  an  example  of  this  kind  of  treaty  may  be  mentioned  that  with 
France,  in  force  from  1778  to  1798,  which  said,  “There  shall  be  a firm, 
inviolable,  and  universal  peace  and  a true  and  sincere  friendship  between” 
etc.,  Malloy,  p.  469.  The  same  phrase  introduces  the  treaty  with  Sweden 
of  1783,  p.  1725;  with  Prussia,  1785-1796,  p.  1477;  with  the  Netherlands, 
1782-1795,  p.  1234;  with  Great  Britain,  1794,  p.  591.  Most  of  these  treaties 
have  been  abrogated  or  superseded  and  the  more  recent  treaties  generally 
relate  to  particular  subjects  such  as  commerce,  extradition,  consular  privi- 
leges, etc.,  and  do  not  contain  the  specific  peace  and  amity  clause.  This, 
however,  is  not  universally  true.  The  treaty  with  Spain  of  1902  begins 
with  an  article  of  the  character  formerly  so  common,  p.  1701. 

2In  re  Henfield,  Fed.  Cas.  6360,  (1793). 

^Treaty  with  the  Netherlands,  1792-1795,  art.  i,  Malloy,  p.  1234. 

^Treaty  with  Prussia,  1785-1796,  art.  i,  Malloy,  p.  1477. 

^Treaty  with  Great  Britain,  1794-1807,  art.  i,  Malloy,  p.  591. 

^U.  S.  vs.  Worral,  2 Dali.  384,  (1798)  ; U.  S.  vs.  Hudson,  7 Cranch  32, 
(1812). 

no 


Ill] 


OBLIGATIONS  OF  NEUTRALS 


111 


subjects  from  accepting  privateering  commissions  or  letters  of 
marque  to  serve  against  the  other/  Often  the  stipulation  was  added 
that  offenders  were  to  be  punished  as  pirates/  Such  provisions 
were  frequently  mentioned  by  the  courts  as  the  basis  for  assum- 
ing jurisdiction  over  prizes  brought  into  United  States  ports, 
and  for  restoring  them  to  their  original  owners  when  it  was 
proved  that  the  captor  was  an  American  citizen  operating 
under  a foreign  letter  of  marque/  No  criminal  prosecutions 
have,  however,  been  instituted  under  strength  of  the  treaty 
provisions  alone,  although  there  would  seem  to  be  greater  war- 
rant for  such  action  than  under  the  general  peace  and  amity 
provisions  invoked  in  the  Henfield  case.  On  the  contrary,  the 
court  in  The  Bello  Corrunes,  commenting  on  the  fact  that  the 
acceptor  of  a certain  commission  to  cruise  against  Spain  ought 
to  be  indictable  as  a pirate  according  to  the  treaty  with  that 
country,  expressed  the  opinion  that  under  the  ‘‘free  institu- 
tions of  this  country”  such  action  would  probably  be  impossi- 
ble.^® The  fact  that  this  duty  was  undertaken  as  a privilege, 
accorded  to  the  contracting  party,  indicates  that  it  was  not 
regarded  as  a duty  demanded  by  international  law.  Priva- 
teering itself  is  now  prohibited  by  international  law  and  states 
are  therefore  under  the  general  obligation  to  prevent  the  ac- 
ceptance of  letters  of  marque  by  their  subjects.  The  matter  is 

"^The  acceptance  of  letters  of  marque  to  serve  against  the  contracting 
party  is  forbidden  in  the  following  treaties:  France,  1778-1798,  art.  21, 
Malloy,  p.  475 ; Bolivia,  1858,  art.  25,  p.  121 ; Central  America,  1825-1839,. 
art.  24,  p.  167;  Chili,  1832-1850,  art.  22,  p.  178;  Colombia,  1824-1836,  art. 
22,  p.  299,  1846,  art.  26,  p.  310;  Dominican  Republic,  1867-1898,  art.  25,  p. 
41 1 ; Ecuador,  1879-1892,  art.  25,  p.  428;  Guatemala,  1849-1874,  art.  24,  p. 
868;  Hayti,  1864-1905,  art.  31,  p.  929;  Netherlands,  1782-1795,  art.  19,  p. 
1239;  Peru,  1870-1886,  art.  28,  p.  423;  1887-1899,  art.  26,  p.  1439  5 Prussia,. 
1785-1796,  art.  20,  p.  1483;  1799-1810,  art.  20,  p.  1493;  1828,  art.  12,  p.  14991 
Salvador,  1850-1870,  art.  26,  p.  i545;  1870-1893,  art.  26,  p.  15591  Spain,  1795- 
1902,  art.  14,  p.  1645;  Sweden,  1783,  art.  23,  p.  1733,  renewed,  1827,  art.  17, 
p.  1754;  Venezuela,  18^-1870,  art.  25,  p.  18531  Great  Britain,  1794-1807, 
art.  21,  p.  603. 

8It  is  provided  that  offenders  shall  be  treated  as  pirates  in  the  follow- 
ing of  the  above  treaties : Colombia,  Ecuador,  Guatemala,  Netherlands, 
Peru,  Prussia,  Salvador,  Spain,  Sweden,  Great  Britain. 

®Talbot  vs.  Jansen,  3 Dali.  133;  The  Bello  Corrunes,  6 Wheat.  152, 
(1821). 

lOThe  Bello  Corrunes,  6 Wheat.  152,  (1821)  ; Treaty  with  Spam,  1795- 
1902,  art.  14,  Malloy,  p.  1645. 


112  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [112 

mentioned  in  .few  if  any  particular  treaties  in  force,  but  is  con- 
sidered in  general  law-making  treaties  and  in  statutes. 

Article  22  of  the  treaty  with  France,  of  1778,  made  it  un- 
lawful for  foreign  privateers  other  than  those  of  France  '‘to 
fit  their  ships”  in  the  ports  of  the  United  States,  or  to  sell  or 
exchange  prizes  which  they  had  captured  or  to  purchase  pro- 
visions in  excess  of  an  amount  necessary  to  supply  them  to  the 
nearest  home  port.  Since  an  implied  exception  was  made  in 
the  case  of  France^^  it  seems  that  the  duties  here  mentioned 
were  not  at  that  day  conceived  of  as  duties  imposed  by  inter- 
national law.  Similar  provision,  without  the  exception  for  the 
benefit  of  the  contracting  parties,  has  been  inserted  in  a num- 
ber of  other  treaties.^^  The  special  privilege  accorded  to  France 
in  this  respect  was  the  basis  of  much  diplomatic  difficulty  in  the 
early  days  of  the  United  States,  and  it  was  finally  abrogated  in 
1798^^  by  act  of  congress.  It  is  now  clear  that  the  duty  to  pre- 
vent the  fitting  out  of  armed  vessels  is  required  by  interna- 
tional law,  and  no  nation  can  be  accorded  special  privileges  in 
this  regard  compatibly  with  the  continued  maintenance  of  neu- 
trality. The  United  States  recognized  this  fact  in  the  treaty  of 
Washington  with  Great  Britain  in  1871.^^  Article  six  of  that 
treaty  stated  that  a neutral  government  is  bound  to  exercise 
"due  diligence”  to  prevent  (1)  the  fitting  out  within  its  juris- 
diction of  vessels  intended  to  cruise  against  foreign  states  and 
the  departure  of  such  vessels,  and  (2)  the  use  of  its  ports  or 
waters  as  a "base  of  naval  operations”  for  the  augmentation  of 
military  supplies  or  for  the  recruitment  of  men.  Although  this 
treaty  was  concluded  with  the  immediate  purpose  of  furnishing 
a basis  for  adjudicating  the  so  called  Alabama  claims,  both  coun- 
tries expressly  declared  their  intention  to  be  bound  for  the  fu- 
ture by  these  provisions.  The  treaty  is  still  in  force  and  is  law 
in  the  United  States. 

iiTreaty  with  France,  1778-1798,  art.  17,  18,  Malloy,  p.  475. 

i“The  selling  of  prizes,  fitting  out  of  privateers,  and  purchasing  of  vic- 
tuals by  warships  except  sufficient  to  reach  the  nearest  home  port  is  pro- 
hibited to  enemies  of  the  contracting  party  in  the  following  treaties: 
France,  1778-1798,  art.  22,  Malloy,  p.  475)  1800-1809,  art.  25,  p.  504;  Domin- 
ican Republic,  1867-1898,  art.  24,  p.  411 ; Hayti,  1864-1905,  art.  31,  p.  929; 
Venezuela,  1860-1870,  art.  24,  p.  1853;  Great  Britain,  1794-1807,  art.  24,  p. 
604. 

13 Act  of  July  7,  1798,  I stat.  578. 

i^Treaty  of  Washington,  with  Great  Britain,  1871,  Malloy,  p.  703. 


113] 


OBLIGATIONS  OF  NEUTRALS 


113 


(2)  The  greater  part  of  these  duties  formerly  stipulated 
for  in  treaties  with  single  countries  have  now  been  incorporated 
in  the  Hague  conventions  and  thus  given  more  definite  recogni- 
tion as  principles  of  international  law.  Those  dealing  with  neu- 
tral duties  are,  however,  by  their  terms  binding  only  when  all 
of  the  parties  in  the  war  are  signatories.^^  These  conventions  re- 
quire a neutral  state  to  prevent,  by  the  use  of  force  if  necessary, 
the  transportation  of  troops  across  its  territory,  or  the  use  of 
neutral  territory  for  erecting  wireless  stations  or  for  recruit- 
ing.^® but  it  is  stipulated  that  no  obligation  exists  to  prevent  in- 
dividuals crossing  its  frontiers  for  foreign  service,  or  the  expor- 
tation of  arms  by  private  persons.^^  In  reference  to  naval  war, 
the  neutral  must  use  the  “means  at  its  disposal”  to  prevent  the 
making  of  captures  in  territorial  waters,  the  setting  up  of  bellig- 
erent prize  courts  in  its  territory,  or  the  use  of  its  ports  as  a 
“base  of  naval  operations.”^®  The  principle  of  the  treaty  of 
Washington,  requiring  the  neutral  state  to  prevent  the  fitting  out 
or  departure  of  armed  vessels  from  its  shores,  is  embodied  prac- 
tically verbatim.^®  The  neutral  state  is  also  required  to  prevent 
belligerent  war  vessels  and  prizes,  enjoying  the  right  of  asylum 
in  its  ports,  from  exceeding  the  privileges  accorded  them  by  in- 
ternational law.  Thus  it  must  enforce  the  twenty-four  hour  stay 
and  twenty-four  hour  interval  rules  and  must  prevent  the  carry- 
ing out  of  repairs  by  war  vessels  other  than  those  “absolutely 
necessary  to  render  them  seaworthy,”  and  the  augmentation  of 
their  fighting  force  or  armament.  Fuel  may  only  be  given  suffi- 
cient to  reach  the  nearest  home  port  and  only  once  in  three 
months  in  the  same  port  to  vessels  of  the  same  belligerent 
power.2®  Failure  to  enforce  these  rules  would  constitute  the  neu- 
tral port  a “base  of  naval  operations.” 

As  treaties  are  declared  by  the  constitution  to  be  part  of  the 
law  of  the  land,  it  would  seem  that  executive  officers  and  courts 
are  justified  in  assuming  authority  to  carry  out  any  of  these  pro- 
visions, even  in  the  absence  of  express  statutory  authority.  This 
view  was  upheld  in  the  case  of  Ex  parte  Toscana.^^  This  case 
does  not  relate  to  a duty  of  prevention,  but  to  the  provision  of 
i^Hague  Conventions,  1907,  v,  art  20;  xiii,  art  28,  Malloy,  pp.  2290- 

2352. 

i®Ibid.,  V,  arts.  2-5,  10;  xiii,  art.  5. 

^^Ibid.,  V,  arts.  6-8,  xiii,  art.  7. 

i®Hague  Conventions,  1907,  xiii,  arts.  2,  4,  5,  25,  26. 

i®Ibid.,  xiii,  art.  8. 

20Ibid.,  xiii,  arts.  13,  14,  16-21. 

2iEx  parte  Toscana,  208  Fed.  Rep.  938,  (1913). 


114 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[114 


the  Hague  convention  of  1907  requiring  a neutral  state  to  vindi- 
cate its  sovereignty  by  interning  belligerent  troops  crossing  its 
frontier.  It  would  seem  that  if  executive  officers  have  power  to 
perform  that  duty  under  authority  of  the  treaty  alone,  a similar 
exercise  of  authority  in  performing  duties  of  prevention  would 
be  upheld.  Undoubtedly  criminal  prosecutions  could  not  be  un- 
dertaken solely  under  authority  of  the  conventions, but  it  is 
believed  that  this  case  is  authority  for  the  view  that  executive 
action  temporarily  restraining  property  or  persons,  for  the  pur- 
pose of  carrying  out  any  of  the  duties  of  prevention  required  by 
treaty,  would  be  upheld  as  valid  and  not  in  conflict  with  consti- 
tutional guarantees  of  “due  process  of  law,”  etc. 

There  are,  however,  statutory  means  provided  for  the  more 
effective  enforcement  of  most  of  the  duties  of  prevention  deflned 
in  these  treaties,  as  well  as  those  required  by  the  general  princi- 
ples of  international  law  not  specified  in  treaties  or  international 
agreements. 


STATUTORY  PROVISIONS 

(1)  In  1794  the  first  neutrality  statute  was  enacted.^^  It 
defined  certain  actions  on  the  part  of  citizens  of  the  United 
States  in  aid  of  one  of  the  belligerents  as  subject  to  criminal  pun- 
ishment, and  gave  administrative  authority  for  the  enforcement 
of  these  provisions. 

The  enactment  of  this  statute  was  the  outgrowth  of  two 
events,  (1)  the  neutrality  proclamation  of  the  president  and  (2) 
the  unsuccessful  attempt  to  obtain  a criminal  conviction  for  a 
breach  of  neutrality  under  treaties,  these  proclamations  and  the 
common  law.  Washington’s  neutrality  proclamation  of  April 
22,  1793,^^  after  reciting  the  state  of  war  which  existed  and  the 
intention  of  the  United  States  to  remain  neutral,  said,  “I  have 

220n  lack  of  a common  law  criminal  jurisdiction  in  federal  courts  see 
U.  S.  vs.  Worral,  2 Dali.  384,  (1798),  U.  S.  vs.  Hudson,  7 Cranch  32, 
(1812).  A federal  criminal  jurisdiction  based  on  treaties  and  international 
law  was  upheld  in  In  re  Henfield,  Fed.  Cas.  6360  (1793)  and  U.  S.  vs.  Ra- 
vara,  2 Dali.  297,  Fed.  Cas.  16,122,  (i793)* 

“^Act  June  5,  1794,  i stat.  381. 

^^Proclamation,  April  22,  1793,  ii  stat.  753;  Am.  St.  Pap.,  For.  Rel., 
i;i4o;  Compilation  of  the  Messages  and  Papers  of  the  Presidents,  1789- 
1897,  J.  D.  Richardson,  ed.,  10  vol.,  Washington,  1896-1899,  i :i57.  See 
also  Rules  adopted  by  the  cabinet  as  to  the  equipment  of  vessels  in  the 
ports  of  the  United  States  by  belligerent  powers,  Aug.  3,  1793,  Richard- 
son’s Messages,  io;86. 


115] 


OBLIGATIONS  OF  NEUTRALS 


115 


given  instructions  to  those  officers  to  whom  it  belongs  to  cause 
prosecution  to  be  instituted  against  all  persons  who  shall,  within 
the  cognizance  of  the  courts  of  the  United  States,  violate  the  law 
of  nations  with  respect  to  the  powers  at  war  or  any  of  them.’' 
This  proclamation  was  followed  by  a more  vigorous  one  of  March 
24,  1793,2^  which  specified  various  offences  against  neutrality 
which  would  be  regarded  as  criminal,  and  especially  ‘‘required 
all  courts,  magistrates  and  other  officers  * to  exert  the  power 
in  them  severally  vested  to  prevent  and  suppress  such  unlawful 
assemblages  and  proceedings  and  to  bring  to  condign  punish- 
ment those  who  may  have  been  guilty  thereof.” 

The  contents  of  these  proclamations  indicate  the  belief  that 
breaches  of  neutrality  by  individuals  could  be  punished  without 
specific  statute,  and  this  view  was  upheld  by  the  court  in  the 
case  of  Gideon  Henfield.  Henfield,  who  was  accused  of  serving 
on  board  a French  vessel,  was  brought  to  trial  in  the  summer  of 
1793  after  Washington’s  first  proclamation  and  before  his  sec- 
ond. The  United  States  Circuit  court  of  Pennsylvania,  com- 
posed of  Justices  Wilson,  Iredell,  and  Peters,  charged  the  jury  to 
find  Henfield  guilty  of  breaches  of  neutrality  because  he  had  vio- 
lated the  law  of  nations  which  was  part  of  the  common  law,  be- 

25Proclamation,  March  24,  1794,  ii  stat.  753;  Richardson’s  Messages, 
I :i57.  Neutrality  proclamations  of  similar  character  have  been  issued  by 
the  president  in  succeeding  wars  in  which  the  United  States  has  been  neu- 
tral. Franco-Prussian  War,  (Aug.  22,  Nov.  8,  1870,  16  stat.  1132;  Rich- 
ardson’s Messages,  7;  86;  89):  Russo-Japanese  War,  (Feb.  ii,  1904,  33 
stat.  2332)  : Turco-Italian  War,  (Oct.  24,  1911,  37  stat.  1719)  : Great  War, 
(Aug.  4-27,  1914,  Supp.  Am.  Jour.  Int.  Law,  g;j  Jan.  1915).  On  a num- 
ber of  occasions  neutrality  proclamations  have  been  issued  calling  atten- 
tion to  a state  of  insurrection  or  insurgency,  when  belligerency  has  not 
been  recognized,  and  to  the  provisions  of  the  neutrality  laws  applicable  in 
such  circumstances.  Revolt  of  Spanish  colonies,  (Nov.  27,  1806;  Sept,  i, 
1815,  Richardson’s  Messages,  i ;404,  561):  Canadian  Insurrection,  (Jan. 
5;  Nov.  21,  1838;  Sept.  25,  1841,  II  stat.  784-786;  Richardson’s  Messages, 
3;48i-482,  4;72)  : Cuban  Filibusters,  (Aug.  ii,  1849;  April  25,  1851;  May 
31,  1855,  II  stat.  787;  Richardson’s  Messages,  5 ;7,iii,272)  : Mexican  Fili- 
busters, (Oct.  22,  1851;  Jan.  18,  1854,  Richardson’s  Messages,  5;ii2,27i); 
Nicaraguan  Filibusters,  (Dec.  8,  1855;  Oct.  30,  1858,  ii  stat.  789>798;  Rich- 
ardson’s Messages,  5 ; 388,496)  : Fenian  Invasion  of  Canada,  (June  6,  1866; 
May  24,  1870,  14  stat.  813;  16  stat.  1132;  Richardson’s  Messages,  6 ',433: 
7;85)  : Cuban  Revolution,  (Oct.  12,  1870;  June  12,  1895;  July  27,  1896,  16 
stat.  1136;  29  stat.  870,881;  Richardson’s  Messages,  7;9i,  91591,  694);  In- 
surgency in  Dominican  Republic,  (Oct.  14,  1905,  34  stat.  3183)  ; Mexican 
Revolution,  (Mch.  2,  12,  1912,  37  stat.  1732-1733) • 


116  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [116 

cause  he  had  violated  certain  treaties  of  peace  and  amity  be- 
tween the  United  States  and  some  of  the  belligerent  powers,  and 
because  he  had  endangered  the  safety  and  security  of  the  United 
States.  In  spite  of  this  the  jury  refused  to  find  Henfield  guilty 
largely  on  account  of  the  popular  republican  sympathy  for  rev- 
olutionary France. 

In  order  to  prevent  the  recurrence  of  such  an  event  the 
president  urged  upon  congress  the  passage  of  a neutrality  act 
specifying  crimes  against  neutrality  and  fixing  adequate  penal- 
ties. The  result  was  the  act  of  June  5,  1794,^®  already  mentioned. 
Since  that  time  neutrality  acts  of  similar  character  have  been 
constantly  in  force  in  the  United  States.^^ 

For  some  time  after  the  passage  of  this  act  there  was  doubt 
whether  such  offenses  were  not  indictable  at  common  law,  in  the 
federal  courts,  in  the  absence  of  a specific  act.  It  was  only  grad- 
ually that  the  doctrine  that  federal  courts  enjoy  no  common  law 
jurisdiction,  developed.  In  the  case  of  the  United  States  vs. 
Ravara,^®  which  involved  the  sending  of  threatening  letters  to  a 
diplomatic  minister,  the  United  States  Circuit  court  of  Pennsjd- 
vania  maintained  its  jurisdiction  in  a criminal  case  at  common 
law.  In  the  cases  of  the  United  States  vs.  WorraP®  in  1798  and 
United  States  vs.  Hudson®^  in  1812,  the  latter  in  the  supreme 
court  of  the  United  States,  the  theory  of  a common  law  jurisdic- 
tion in  federal  courts  was  denied  and  since  then  this  view  has  in 
the  main  been  adhered  to.  It  thus  appears  that  in  the  present 
state  of  the  law,  in  the  absence  of  statute,  offenses  against  neu- 
trality would  not  be  criminally  punishable. 

2«Act  June  5,  1794,  i stat.  381. 

27The  act  of  June  5,  1794,  (i  stat.  381)  was  to  last  two  years.  It  was 
renewed  Mch.  2,  1797,  (i  stat.  497),  amended,  June  14,  1797,  (i  stat.  520) 
and  made  permanent  April  24,  1800,  (2  stat.  54).  This  was  amended  by 
the  temporary  act  of  Mch.  3,  1817  (3  stat.  370)  and  the  whole  statute  was 
revised  in  the  permanent  act  of  April  20,  1818,  (3  stat.  447).  A temporary 
amendment  was  passed  March  10,  1838,  (5  stat.  212).  The  act  of  1818  was 
repeated  in  the  Revised  Statutes  of  1878  (sec.  5281-5291)  and  with  a few 
alterations  in  the  Penal  Code  of  1910,  (35  stat,  1088,  sec.  9-18,  303).  Acts 
of  April  22,  1898,  (30  stat.  739),  March  14,  1912,  (37  stat.  630)  and  March 
4,  1915,  should  be  regarded  as  amendments  to  the  neutrality  statutes.  For 
excellent  discussion  of  the  neutrality  laws,  giving  the  authoritative  inter- 
pretation by  the  courts,  see  C.  G.  Fenwick,  The  Neutrality  Laws  of  the 
United  States,  Washington,  1913,  passim. 

“®U.  S.  vs.  Ravara,  2 Dali.  297,  Fed.  Cas.  16,122,  (1793). 

29U.  S.  vs.  Worrall,  2 Dali.  384,  (i/PS). 

2®U.  S.  vs.  Hudson,  7 Cranch  32,  (1812). 


117] 


OBLIGATIONS  OF  NEUTRALS 


117 


(2)  The  crimes  defined  by  the  neutrality  statutes  may  be  * 
roughly  classified  as  (a)  accepting  commissions,  (b)  enlisting 
in  the  service  of  a belligerent,  (c)  setting  on  foot  military  or 
naval  expeditions,  and  (d)  using  the  territory  of  the  United 
States  as  a base  of  military  or  naval  operations. 

(a)  ‘‘Accepting  and  exercising”  a commission  within  the 
United  States  for  service  against  a foreign  state  is  a crime  when 
performed  by  United  States  citizens.^^  There  has  been  only  one 
prosecution  under  this  provision,  that  of  Isaac  Williams  in 

1797.^2 

(b)  Enlisting  in  the  service  of  a foreign  state  or  political  body 
within  the  territory  of  the  United  States,  or  “hiring  or  retain- 
ing” others  to  do  such  an  act  or  to  leave  the  country  with  “in- 
tent” to  do  so  is  a crime  for  either  citizens  or  aliens,®^  but  it  has 
been  held  that  the  section  does  not  forbid  leaving  the  country 
with  intent  to  enlist  abroad,  either  individually^^  or  in  parties.^® 

(c)  “Setting  on  foot  military  expeditions”  within  the  ter- 
ritory of  the  United  States  is  made  a crime®®  and  has  been  held 
to  apply  even  though  the  expedition  is  directed  against  unrecog- 
nized insurgents.®’’  Hostile  “intent”  must,  however,  be  proved.®® 
A mere  departure  of  bodies  of  men,  even  with  arms,  may  not 
constitute  a “military  expedition”  in  the  meaning  of  the  stat- 
ute.®® Several  sections  of  the  neutrality  statutes  were  designed 
particularly  to  prevent  the  “fitting  out  and  arming”^®  and 

3iRev.  Stat.  sec.  5281,  Penal  Code  of  1910,  35  stat.  1088,  sec.  9. 

22U.  S.  vs.  Isaac  Williams,  2 Cranch,  82,  note.,  Fed.  Cas.  17,708,  (1797). 
See  also  charge  to  Grand  Jury,  McLean,  Fed.  Cas.  18,265,  (1838). 

33Rev.  Stat.,  sec.  5282,  Penal  Code  of  1910,  sec.  10. 

S.  vs.  Hertz,  Fed.  Cas.  15,337,  (1855),  U.  S.  vs.  Kazinski,  Fed. 
Cas.  15,508,  (1855). 

35U.  S.  vs.  Nunez,  82  Fed.  Rep.  599;  U.  S.  vs.  O’Brien,  75  Fed.  Rep. 
900.  On  this  offense  see  also  Lee,  Att.  Gen.,  i op.  63 ; Cushing,  Att.  Gen., 

7 op.  377;  In  re  Henfield,  Fed.  Cas.  6360,  (1793)- 

26Rev.  Stat.,  sec.  5286,  Penal  Code  of  1910,  sec.  13, 

s^Wiborg  vs.  U.  S.,  163  U.  S.  632;  U.  S.  vs.  O’Sullivan,  Fed.  Cas.  15,- 
974.  Contrary  The  Three  Friends,  166  U.  S.  i.  See  also  letter  of  Secre- 
tary of  State  Bayard,  July  31,  1855,  For.  Rel.,  1855,  p.  776,  and  21  op.  267. 

38U.  S.  vs.  O’Sullivan,  Fed.  Cas.  15,975. 

^^U.  S.  vs.  Hart,  74  Fed.  Rep.  724.  Other  prosecutions  under  this  section 
see,  U.  S.  vs.  Hart,  78  Fed.  Rep.  868;  U.  S.  vs.  Lumsden,  Fed.  Cas.  15,641 ; 
U.  S.  vs.  Murphy,  85  Fed.  Rep.  609;  U.  S.  vs.  Ybanez,  53  Fed.  Rep.  536; 
U.  S.  vs.  Hughes,  75  Fed.  Rep.  267.  See  also  Charge  to  Grand  Jury,  Mc- 
Lean, Fed.  Cas.  18,267,  (1851). 

-^oRev.  Stat.  sec.  5283,  5284,  Penal  Code  of  1910,  sec.  11,303. 


118 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[118 


^‘augmenting  the  force of  privateers.  These  were  important 
in  the  days  of  the  Napoleonic  wars  and  the  revolts  of  the  Span- 
ish and  Portuguese  colonies  in  South  America  in  the  early  nine- 
teenth century,  and  there  were  many  prosecutions  under  them.'^^ 
With  the  revolution  in  naval  architecture  which  the  use  of  steel 
has  brought,  and  the  abolition  of  privateering  by  the  Declaration 
of  Paris  of  1856,  privateering  by  individuals  is  no  longer  impor- 
tant, although  there  were  prosecutions  under  these  provisions  as 
late  as  1891  for  fitting  out  naval  expeditions  for  use  in  Spanish 
American  revolutions.^^  This  same  change,  however,  has  made 
the  construction  and  sale  of  an  armed  vessel  to  a belligerent  a 
violation  of  neutrality  in  itself.^^  There  have  been  efforts  to 
apply  these  provisions  to  prevent  the  sale  of  armed  vessels  to 
belligerents.  The  courts  have,  however,  held  that  an  “intent” 
to  use  the  vessel  in  hostilities  must  be  shown,  and  “intent”  im- 
plies more  than  a mere  knowledge  of  the  use  to  which  it  will  be 
put."*®  There  is  no  provision  making  the  bona  fide  sale  of  ves- 

^iRev.  Stat.  sec.  5285 ; Penal  Code  of  1910,  sec.  12. 

^^Criminal  Prosecutions,  see,  U.  S.  vs.  Guinet,  2 Dali.  321,  (1795) 
Scott  695;  U.  S.  vs.  Smith,  Fed.  Cas.  16,342a,  (1806)  ; U.  S.  vs.  Skinner, 
Fed.  Cas.  16,309,  (1818)  ; U.  S.  vs.  Quincy,  6 Pet.  445,  (1832),  Scott  706; 
U.  S.  vs.  Trumbull,  48  Fed.  Rep.  99,  (1891),  Scott  731.  See  also  Nelson, 
Att.  Gen.,  4 op.  336,  (1844).  Forfeiture  of  vessels,  see,  Ketland  vs.  The 
Cassius,  Fed.  Cas.  7743;  Gelston  vs.  Hoyt,  3 Wheat.  246,  (1818)  ; The  Me- 
teor, Fed.  Cas.  9498,  (1866),  reversed,  Fed.  Cas.  15,760,  Scott  71 1;  The 
Mary  N.  Hogan,  18  Fed.  Rep.  529;  U.  S.  vs.  214  Boxes  of  Arms,  20  Fed. 
Rep.  50;  The  City  of  Mexico,  28  Fed.  Rep.  148,  (1886)  ; The  Carondolct, 
37  Fed.  Rep.  799,  (1899);  The  Conserva,  38  Fed.  Rep.  431;  The  Three 
Friends,  166  U.  S.  i,  (1897)  ; The  Itata,  56  Fed.  Rep.  505;  The  Laurada, 
85  Fed.  Rep.  760,  (1898).  Restoration  of  prizes  captured  by  war  vessels, 
see  infra  pp.  135-136. 

S.  vs.  Trumbull,  48  Fed.  Rep.  99,  (1891),  Scott  731. 

■*^See  Scott  720,  note.  A modern  steel  warship  constitutes  a “mili- 
tary expedition”  in  itself  and  it  cannot  be  treated  as  other  articles  of  con- 
traband, the  sale  of  which  by  private  persons  is  permissible.  See  Snow, 
cases,  p.  437-438;  Editorial  Comm.ent,  J.  B.  Scott,  Am.  Jour.  Int.  Law., 
9;i77,  Jan.  1915. 

^^The  Meteor,  Fed.  Cas.  15,760,  reversing  Fed.  Cas.  9,498;  The  San- 
tissima  Trinidad,  7 Wheat.  283;  LaConception,  6 Wheat.  235;  The  Bello 
Corrunes,  6 Wheat.  152;  U.  S.  vs.  Quincy,  6 Pet.  445;  The  Laurada,  98  Fed. 
Rep.  983 ; Moodie  vs.  The  Alfred,  3 Dali.  307 ; 5 op.  92.  The  contrary  view 
was  offered  by  Attorney  General  Legare,  (3  op.  747)  and  by  Justice  Betts, 
in  the  Meteor,  (Fed.  Cas.  9,498)  although  his  decision  was  reversed  on 
this  point  in  the  Circuit  court,  (Fed.  Cas.  15,760).  The  correctness  of  the 


119] 


OBLIGATIONS  OF  NEUTRALS 


119 


6els  to  a belligerent  a crime,  although  it  was  acts  of  this  kind 
which  the  United  States  complained  of  in  the  Alabama  Claims 
controversy.^® 

(d)  Certain  acts  which  would  constitute  the  ports  or  terri- 
tory of  the  United  States  a “base  of  naval  or  military  oper- 
ations” have  been  made  criminal  offenses.  The  setting  on  foot 
of  military  expeditions,  the  fitting  out  and  arming  of  privateers, 
or  augmenting  of  their  force  have  been  mentioned.  A joint  res- 
olution of  April  22,  1898,^^  authorizing  the  president  to  prohibit 
the  exportation  of  coal  or  military  material.  This  was  amended 
on  March  14,  1912^®  making  such  exportation  a penal  offense  ex- 
cept under  exemptions  specified  by  the  president.  This  applies 
only  after  the  president  has  made  a proclamation  that  “condi- 
tions of  domestic  violence  ’ ’ exist  in  an  ‘ ‘ American  country  ’ ’ and 
are  being  promoted  by  “munitions  of  war  procured  from  the 
United  States.”  An  act  of  March  4,  1915^®  authorized  the  presi- 

interpretation  which  excludes  the  sale  of  armed  vessels  from  the  prohibi- 
tion of  the  section  is  indicated  by  the  fact  that  a bill  to  prevent  the  sale  of 
armed  vessels  to  belligerents  was  presented  in  the  House  of  Representa- 
tives in  1817.  It  Was  lost  in  the  Senate.  (See  Annals  of  Congress,  14th 
Cong.,  2nd  sess.  p.  719).  Also  in  1866,  when  popular  sympathy  was 
aroused  over  the  Fenian  uprising  and  it  was  felt  that  the  neutrality  laws 
were  too  strict,  a bill  was  presented  in  the  House  to  prevent  the  recur- 
rence of  a decision  similar  to  that  of  Justice  Betts  in  the  Meteor  which 
had  recently  been  given.  The  bill  consisted  of  a revision  of  the  neutrality 
acts  including  the  provision  that  nothing  be  construed  to  prevent  the  sale 
of  armed  vessels  to  belligerents.  This  bill  was  also  lost  in  the  Senate. 
(See  Cong.  Globe,  39th  cong.  ist  sess.  p.  4194-4197,  and  House  Report,  No. 
100,  39th  cong.,  1st  sess).  On  this  general  subject  see  Fenwick,  op.  cit.  pp. 
37,  48-49,  108-109. 

^®On  the  Alabama  award  see,  Moore,  Int.  Arb.,  i ;495-682,  4 14057- 
4178;  5;4639-468s;  Moore’s  Digest,  7;io59-i076;  Montague  Bernard,  His- 
torical account  of  the  neutrality  of  Great  Britain  during  the  American 
Civil  War,  London,  1870;  Caleb  Cushing,  The  Treaty  of  Washington,  N. 
Y.,  1873;  Scott,  713-720. 

4'^Act  April  22,  1898,  30  stat.  739.  This  joint  resolution  was  a war 
measure,  intended  to  conserve  to  the  United  States  the  supplies  of  war  ma- 
terial manufactured  in  the  country  and  had  no  connection  with  obligations 
of  neutrality  but  it  was  used  as  a basis  for  the  neutrality  proclamation  of 
President  Roosevelt,  on  Oct.  14,  1905,  (34  stat.  3183),  forbidding  the 
exportation  of  arms  to  Dominican  Republic  where  a revolution  was  going 
on.  See  Fenwick,  op.  cit.  p.  56. 

4®Act,  March  14,  1912,  37  stat.  630. 

49Act,  March  4,  1915,  38  stat.  1226. 


120  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [120 

dent  to  direct  customs  officers  to  detain  vessels  which  are  sus- 
pected of  carrying  fuel,  arms,  men,  or  supplies  to  foreign  war- 
ships hovering  outside  of  the  harbor,  and  persons  engaged  in 
thus  using  American  territory  as  a base  of  naval  operations  are 
■subject  to  criminal  indictment.  The  provisions  of  this  act  were 
suggested  by  a circular  of  the  Department  of  State  of  September 
19,  1914,^°  in  which  the  detention  of  vessels  engaged  in  such  un- 
neutral acts  was  authorized. 

Fines  ranging  up  to  $10,000,  imprisonment  ranging  up  to 
ten  years,  and  forfeiture  of  unneutrally  used  vessels  and  other 
property  are  provided  for  these  various  offenses.®^ 

(3)  Besides  the  criminal  provisions,  statutes  have  provided 
other  means  for  preventing  infractions  of  neutrality.  District 
courts  are  given  jurisdiction  of  vessels  fitted  out  in  violation  of 
neutral  duties  with  authority  to  condemn  them.®^  The  president 
is  authorized  to  employ  the  military  and  naval  forces  of  the 
country  to  enforce  the  provisions  of  the  act  after  judicial  process 
shall  have  been  ineffective,®^  and  to  require  foreign  vessels  to  de- 
part from  ports  of  the  United  States  when  such  stay  would  be 
contrary  to  international  law  or  treaty.®^  United  States  minis- 

^®Circular  of  the  Department  of  State,  Sept.  19,  1914,  Siipp.  Am.  Jour. 
Int.  Law.,  9;i22,  Jan.  1915. 

51  Penalties:  Accepting  foreign  commission,  fined  not  over  $2,000,  im- 
prisoned not  over  3 years,  (Penal  Code  of  1910,  sec.  9)  ; enlisting  in  for- 
eign service,  $1,000,  3 years,  (P.  C.  sec.  10)  ; setting  on  foot  military  expe- 
dition, $3,000,  3 years,  (P.  C.  sec.  13)  ; fitting  out  and  arming  vessel,  $10,- 
000,  3 years,  or  10  years  if  to  cruise  against  United  States  citizens,  and 
forfeiture  of  vessel,  (P.  C.  sec.  11,303)  ; augmenting  force  of  vessel,  $1,000, 
I year,  (P.  C.  sec.  12)  ; exportation  of  arms  to  American  country  when 
prohibited  by  proclamation,  $10,000,  2 years,  (Act,  March  14,  1912,  37  stat. 
630)  ; supplying  belligerent  vessels  from  United  States  ports,  $10,000,  10 
years,  (Act,  March  4,  1915). 

52Rev.  Stat.  sec.  5383,  Penal  Code  of  1910,  sec.  12. 

53Rev.  Stat  sec.  5287,  Penal  Code  of  1910,  sec.  14.  Only  military,  not 
civil  force  may  be  used  under  this  authority,  see  Gelston  vs.  Hoyt,  3 Wheat. 
246;  Nelson,  Att.  Gen.,  4 op.  336,  (1844).  This  view  somewhat  modified, 
21  op.  273. 

54Rev.  Stat.  sec.  5288,  Penal  Code  of  1910,  sec.  15.  Fenwick  expresses 
the  opinion  that  this  section,  the  same  as  the  preceding,  authorizes  the 
president  to  act  only  when  judicial  action  is  impossible,  through  lack  of  jur- 
isdiction due  to  the  public  character  of  the  vessel  or  of  sufficient  evidence  to, 
permit  of  successful  prosecution.  It  seems,  however,  as  though  in  terms 
the  president  is  left  discretion  as  to  the  occasions  upon  which  the  author- 
ity may  be  properly  exercised.  See  Fenwick,  op.  cit.  p.  95. 


121] 


OBLIGATIONS  OF  NEUTRALS 


121 


ters  in  countries  where  the  United  States  maintains  consular 
courts  may  issue  writs  to  prevent  American  citizens  enlisting 
for  service  against  any  foreign  country,  and  are  authorized  to 
use  any  military  force  of  the  United  States  available  to  carry 
this  power  into  effect.®^  Collectors  of  customs  are  required  to 
detain  vessels  ‘‘manifestly  built  for  military  purposes”  leaving 
ports  of  the  United  States  when  circumstances  render  an  unneu- 
tral use  probable, or,  on  order  of  the  president,  any  vessel  sus- 
pected of  carrying  arms  or  supplies  to  belligerent  war  vessels 
hovering  outside  of  the  port.^^ 

Armed  vessels  owned  in  whole  or  in  part  by  citizens  of  the 
United  States,  clearing  out  of  ports  of  the  United  States,  may 
be  required  to  give  bond  that  they  will  not  be  used  by  the  own- 
ers themselves  to  commit  hostilities.^®  This  provision  was  de- 
signed to  prevent  the  use  of  American  owned  privateers  in  war. 
There  would  be  no  breach  of  the  bond  if  vessels  were  sold  to  a 
belligerent  and  used  by  him  to  commit  hostilities.^^ 

Federal  courts  are  given  “authority  to  hold  to  security  of 
the  peace  and  for  good  behavior  in  cases  arising  under  the  con- 
stitution and  laws  of  the  United  States.”®®  This  provision  has 
been  utilized  to  aid  in  the  enforcement  of  neutrality  obligations 
of  prevention.  In  the  ease  of  United  States  vs.  Quitman,®^  aris- 
ing in  1854,  Quitman  refused  to  answer  certain  questions  of  a 
Grand  Jury  which  was  investigating  alleged  violations  of  neu- 
trality in  connection  with  the  Cuban  revolution.  For  this  refu- 

^^Act,  June  12,  i860,  12  stat.  77,  Rev.  Stat  4090.  Consular  courts  are 
given  jurisdiction  over  United  States  citizens  promoting  “insurrection  or 
rebellion  against  the  government”  of  the  country  where  the  court  is  lo- 
cated, with  power  to  decree  the  death  penalty  provided  the  United  States 
minister  approves.  Rev.  Stat.  sec.  4102.  Supra  pp.  39,  74. 

®®Rev.  Stat.  5290,  Penal  Code  of  1910,  sec.  17.  This  provision  was  sug- 
gested by  Hamilton’s  “Instructions  to  the  collectors  of  Customs  of  the 
United  States”  of  Aug.  4,  1793.  Am.  St.  Papers  For.  Rel.,  1 140.  The  cus- 
toms collector  is  liable  for  detention  of  vessels  without  probable  cause,  see 
Hendricks  vs.  Gonzales,  67  Fed.  Rep.  351. 

®7Act  March  4,  1915,  38  stat.  1226. 

®®Rev.  Stat.  sec.  5289,  Penal  Code  of  1910,  sec.  16. 

^^Because  of  the  modern  practice  of  converting  merchantmen,  al- 
though privateering  is  technically  abolished,  the  provision  is  not  obsolete. 
It  seems  probable,  however,  that  it  would  be  wise  to  extend  its  provisions 
to  require  bonding  of  vessels  against  sale  to  a belligerent,  as  this  is  now 
prohibited  by  international  law.  See  Fenwick,  op.  cit.  pp.  96,  154. 

®oRev.  Stat.  sec.  727,  Judicial  Code,  1911,  36  stat.  1087,  sec.  270, 

®iU.  S.  vs.  Quitman,  Fed.  Cas.  16,111,  (1854). 


122  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [122 

sal  the  court  held  that  under  this  statute  bonds  should  be  re- 
quired of  him  to  observe  the  neutrality  laws. 

EXECUTIVE  ACTION 

In  addition  to  the  authority  given  to  administrative,  judi- 
cial and  executive  officers  by  statute,  much  authority  exists  in- 
herently in  such  officers  to  enforce  neutrality  obligations.  The 
opinion  has  been  expressed  that  the  president  as  chief  executive 
may  perform  acts  necessary  to  enforce  treaties  in  the  absence  of 
statutory  authority.®^  Such  matters  as  preventing  abuse  of  the 
privilege  of  asylum  by  belligerent  warships,  the  passage  of 
troops  on  neutral  territory,  and  the  unneutral  use  of  radio-tele- 
graph stations  are  prohibited  by  the  Hague  conventions  as  well 
as  customary  international  law  and  may  be  enforced  by  executive 
action.  Executive  orders  have  provided  for  the  supervision  and 
censorship  of  radio-telegraph  stations,®^  and  the  detention  of  ves- 
sels suspected  of  carrying  supplies  to  belligerent  warships,®^  on 
this  basis.  The  shipping  of  submarines  for  sale  to  a belligerent 
power  has  also  been  prevented  by  executive  action.®"  The  execu- 
tive disapproval  of  loans  to  belligerents,  although  not  required 
by  international  law,  is  another  illustration  of  inherent  execu- 
tive authority  in  these  matters.®® 

Courts  have  held  that  jurisdiction  of  vessels  fitted  out  in 
violation  of  neutrality,  or  prizes  taken  by  them,  is  inherent  in 
the  admiralty  and  prize  jurisdiction,  and  may  be  exercised  in  the 
absence  of  statute.®^  A large  range  of  discretionary  power  to 
prevent  unneutral  use  of  territory  or  unneutral  acts  by  Ameri- 
can citizens  undoubtedly  exists  in  revenue  officers,  marshals  and 
other  civil  officers  of  the  United  States. 

6-Ex  Parte  Toscano,  208  Fed.  Rep.  938,  (1913)  ; See  also  In  re  Debs, 
158  U.  S.  564,  (1895),  on  inherent  power  of  executive  and  judicial  officers 
to  carry  out  the  obligations  and  functions  of  government. 

63Executive  Order,  Aug.  5,  1914,  Supp.  Am.  Jour.  Int.  Law,  9;ii5,  Jan,, 

1915. 

6^Circular  of  Dept,  of  Stat.,  Sept.  19,  I9i4>  Supp.  Am.  Jour.  Int.  Law., 
9;i22,  Jan.,  1915. 

63Letter  by  Secretary  of  State  Bryan,  Dec.  7,  1914,  Am.  Jour.  Int.  Law, 
9;i77>  (Jan.,  1915).  Also  Editorial  Comment,  J.  B.  Scott,  Ibid.,  9;i77* 
See  also  circular  of  Dept,  of  State  with  reference  to  the  status  of  armed 
merchant  vessels,  1914,  permitting  detention  of  suspected  vessels  by  port 
authorities.  Supp.  Am.  Jour.  Int.  Law,  9;i2i,  (Jan.,  1915)- 

66See  Editorial  Comment,  Am.  Jour.  Int.  Law,  8;856  (1914). 

67Glass  vs.  The  Sloop  Betsey,  3 Dali.  6,  (i794)  ; Talbot  vs.  Jansen,  3 
Dali.  133,  (1796)  ; The  Estrella,  ii  Wheat,  298,  (1819). 


123] 


OBLIGATIONS  OF  NEUTRALS 


123 


COMMERCIAL  EMBARGOES 

Another  class  of  acts  which  relates  somewhat  to  the  en- 
forcement of  duties  of  prevention  are  the  embargo  acts  passed  at 
different  times.  The  acts  of  1898  and  1914  requiring  an  embargo 
on  arms  under  certain  conditions  have  already  been  mentioned. 
Of  somewhat  different  character  are  commercial  embargoes,®® 
the  most  important  of  which  were  those  passed  during  Jeffer- 
son’s administration,  while  the  United  States  was  a neutral  dur- 
ing the  Napoleonic  wars  in  Europe. 

There  is  not  and  never  was  a rule  of  international  law 
which  requires  a neutral  state  to  prevent  shipments  of  merchan- 
dise or  of  arms  to  a belligerent  or  to  any  one  else.  This  is  spe- 
cifically stated  in  the  Hague  Conventions  of  1907.®®  The  self- 
made  ‘ ‘ international  law  ’ ’ in  the  extraordinary  Berlin  and  Milan 
decrees  of  Napoleon  and  the  British  order  in  counciF®  forbade 
neutral  commerce  with  practically  all  of  Europe,  and  it  might  be 
inferred  that  the  American  Embargo  of  1807  to  1809  was  in  aid 
of  these  decrees.  It  must  be  understood,  however,  that  these  de- 
crees and  orders  did  not  assert  that  neutral  states  were  under 
obligations  to  prevent  their  subjects  engaging  in  such  commerce. 
They  simply  asserted  that  the  ordinary  rule  of  self-help,  by  which 
belligerents  can  seize  neutral  vessels  as  prize,  would  be  applica- 
ble to  a much  wider  range  of  circumstances  than  permitted  by 
the  ordinary  rules  of  blockade,  contraband  and  unneutral  service. 

The  embargo  and  non-intercourse  acts  are  therefore  to  be  re- 
garded as  rules  of  domestic  policy,  dictated  by  reasons  entirely 
unrelated  to  international  law.  It  was  not  to  aid  in  the  enforce- 
ment of  its  duties  as  a neutral  either  under  international  law 
or  under  the  law  asserted  by  Napoleon’s  decrees  or  the  British 
orders  in  council  that  they  were  enacted.  Their  purpose  was 
rather  one  of  retaliation  against  these  extensions  of  international 

68Embargo  acts,  Mch.  26,  1794,  i stat.  400;  Apr.  2,  1794,  i stat.  401 ; Apr. 
18,  1794,  I stat.  401;  May  22,  1794,  i stat.  396;  June  4,  1794,  i stat.  372; 
Dec.  22,  1807,  2 stat.  451;  Jan.  9,  1808,  2 stat.  453;  Mch.  12,  1808,  2 stat. 
473;  Apr.  25,  1808,  2 stat.  499;  Jan.  9,  1809,  2 stat.  506,  act  of  Dec.  22,  1807 
repealed  Mch.  i,  1809  and  non-intercourse  act  in  reference  to  France  and 
England  substituted.  See  Moore’s  Digest,  7:142-144. 

®9Hague  conventions,  1907,  v,  art.  7,  Malloy,  p.  2298;  xiii,  art.  7,  Mal- 
loy, p.  2359. 

"^oFor  text  of  British  Orders  in  Council  and  Napoleon’s  decrees,  see 
Am.  St.  Pap.,  For.  Rel.,  3 ',262-286;  British  and  Foreign  State  Papers, 
8 1401-513;  De  Martens,  Nouveau  Recueil,  i ;433-549- 


124  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [124 

law.  It  is  noteworthy  that  the  enactment  of  the  embargo  by  the 
United  States  permitted  Napoleon  to  extend  his  view  of  interna- 
tional law  even  further  by  his  Bayonne  decree^^  ordering  the 
seizure  of  all  United  States  vessels  at  sea  on  the  ground  that  he 
was  simply  helping  the  United  States  enforce  its  own  law.  This 
view  was  of  course  unwarranted.  No  domestic  law  of  the  United 
States  could  add  to  the  belligerent  rights  of  either  party  to  the 
war. 


INTEROCEANIC  CANALS 

The  United  States  has  recognized  special  obligations  of  pre- 
vention as  encumbent  upon  it  in  relation  to  the  Panama  Canal, 
by  treaty,  and  has  provided  for  their  enforcement  by  executive 
orders.  In  its  treaties  with  New  Granada,  (now  Colombia)  of 
1846,^^  and  with  Nicaragua  of  1867,^^  the  United  States  guar- 
anteed the  neutrality  of  any  canal  that  might  be  constructed  in 
either  of  these  countries.  In  the  Clayton-Bulwer  treaty  with 
Great  Britain  of  1850,^^  the  two  countries  agreed  jointly  to  guar- 
antee the  neutrality  of  any  interoceanic  canal  in  the  central 
American  region,  but  it  was  provided  that  neither  should  exer- 
cise exclusive  control  of  such  a canal.  Thf  Hay-Pauncefote 
treaty  of  1901^^  superseded  this  treaty.  Great  Britain  accorded 
the  United  States  the  right  to  construct  and  maintain  a canal 
and  to  provide  regulations  for  managing  it.  The  United  States 
agreed  to  adopt  substantially  the  rules  of  the  Suez  canal  conven- 
tion to  ensure  its  neutralization.  Specific  regulations  require 
the  United  States  to  prevent,  in  the  canal  or  adjacent  waters  to 
a three  mile  limit,  blockades,  the  exercise  of  belligerent  rights, 
hostile  acts,  the  revictualing  of  belligerent  vessels,  the  embark- 
ation or  disembarkation  of  troops  or  munitions  of  war  except  in 
case  of  accidental  hindrance  of  transit.  It  must  compel  vessels 
to  complete  transit  with  the  least  possible  delay  and  must  en- 
force the  twenty-four  hour  stay  and  twenty-four  hour  interval 
rules.  To  perform  these  duties  the  United  States  is  authorized 
to  use  necessary  military  force. 

In  its  treaty  of  1903  with  the  Republic  of  Panama^®  the 
United  States  guaranteed  that  country’s  independence  and  was 

■^^Bayonne  Decree,  Am.  State  Pap.,  For.  Rel.,  3;29i. 

■^^Treaty  with  Colombia,  1846,  art.  35,  Malloy,  p.  312. 

73Treaty  with  Nicaragua,  1867,  art.  15,  Malloy,  p.  285. 

'^^Treaty  with  Great  Britain,  1850,  Malloy,  p.  660. 

75Treaty  with  Great  Britain,  1901,  Malloy,  p.  782. 

76Treaty  with  Panama,  1903,  art.  i,  18,  23,  Malloy,  p.  1349. 


125] 


OBLIGATIONS  OF  NEUTRALS 


125 


guaranteed  complete  sovereign  rights  in  perpetuity  over  a strip 
of  territory  known  as  the  Canal  Zone,  extending  five  miles  either 
side  of  the  canal  route  exclusive  of  the  cities  of  Panama  and 
Colon.  The  United  States  guaranteed  the  perpeutal  neutrality 
of  the  canal  and  agreed  to  use  armed  force  and  if  necessary  erect 
fortifications  in  the  canal  zone  for  that  purpose. 

The  canal  was  completed  in  1914  and  regulations  for  its 
operation  and  navigation  were  promulgated  by  executive  order 
July  9,  1914.'^^  Following  the  outbreak  of  European  war  in  Au- 
gust, 1914,  the  president  promulgated  supplementary  rules  un- 
der date  of  Nov.  13,  1914,^®  designed  to  carry  out  treaty  require- 
ments for  preventing  unneutral  acts  in  the  canal.  The  regula- 
tions were  based  on  the  Hay-Pauncefote  and  Panama  treaties, 
the  Suez  Canal  convention  of  Oct.  29,  1888,^®  the  rule  issued 
thereunder  on  Feb.  10,  1904®®  following  the  outbreak  of  the 
Russo-Japanese  war,  and  the  general  requirements  of  neutrals  as 
defined  in  the  Hague  conventions.®^  These  rules  defined  public 
armed  vessels  and  auxiliary  belligerent  vessels,  for  both  of  which 
classes  it  prescribed  the  rules  required  by  the  treaties  mentioned. 
The  enforcement  of  these  regulations  was  ensured  by  requiring 
vessels  to  give  written  assurances  to  obey  them  before  entering 
the  canal.  In  addition  to  the  treaty  requirements  the  regula- 
tions forbade  the  presence  of  more  than  six  war  vessels  of  one 
belligerent  or  its  allies  in  the  canal  or  adjacent  waters  at  a time, 
and  the  passage  of  air  craft  over  the  Canal  Zone.  A protocol 
was  concluded  with  the  Republic  of  Panama  in  October,  1914,®- 
to  ensure  the  cooperation  of  that  republic  in  carrying  out  the 
neutrality  requirements  that  a war  vessel  be  prevented  recoaling 
in  the  same  country  within  a period  of  three  months.  For  the  pur- 
pose of  this  requirement,  the  Republic  of  Panama  and  the  Canal 
Zone  were  considered  the  same  country. 

^’■Rules  and  Regulations  for  the  operation  and  navigation  of  the  Pan- 
ama Canal,  July  9,  1914. 

Proclamation  prescribing  rules  and  regulations  for  the  use  of  the 
Panama  Canal  by  belligerent  vessels,  Nov.  13,  1914.  For  text  see  Supp. 
Am.  Jour.  Int.  Law.,  9;i26,  Jan.  1915.  See  also  editorial  comment  in  Am. 
Jour.  Int.  Law.,  9;i67,  Jan.  1915. 

■^^Convention  of  Constantinople,  Oct.  28,  1888,  Martens,  Nouveau  Re- 
cueil,  ser.  II;  151557;  British  and  Foreign  State  Papers,  78;i8. 

®<^Rules  for  the  use  of  the  Suez  Canal  by  belligerent  vessels,  Feb.  10, 
1904,  British  and  Foreign  State  Papers,  I02;59i. 

®iHague  conventions,  1907,  xiii,  Malloy,  p.  2352. 

®2Protocol  with  Panama,  1914,  Supp.  Am.  Jour.  Int.  Law.,  9;i28,  Jan. 


1915- 


126  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [126 

It  will  be  seen  that  the  duties  of  prevention  undertaken  in 
these  regulations  are  largely  the  same  as  those  required  of  all 
neutral  territory.  The  requirements  are,  however,  stricter  in 
some  cases,  as  the  rights  of  fueling,  repairing,  and  replenishing 
stores  are  more  limited.  The  regulation  interprets  the  twenty- 
four  hour  stay  rule  as  permitting  a twenty-four  hour  stay  in  ad- 
dition to  the  time  occupied  in  transit  of  the  canal. 

The  regulations  seem  to  have  adequately  covered  the  duties 
specifically  undertaken  by  the  United  States  in  reference  to  the 
Canal,  as  well  as  the  duties  encumbent  upon  it  for  preserving  the 
neutrality  of  all  its  territory. 

ACTS  BY  AGENCIES  OP  GOVERNMENT 

Aside  from  the  duties  of  prevention  incumbent  upon  the 
United  States  in  reference  to  its  civil  population,  international 
law  and  treaty  require  it  to  prevent  unneutral  acts  by  public  of- 
ficers. On  the  outbreak  of  wars,  special  instructions  have  been 
generally  sent  to  diplomatic  officers,  often  relating  especially  to 
duties  imposed  upon  such  officers  in  belligerent  countries  in  case 
affairs  of  the  other  belligerent  are  entrusted  to  them.  On  the 
outbreak  of  the  Russo-Japanese  war  in  1904  an  executive  order 
directed  ‘‘all  officials  of  the  government,  civil,  military  and 
naval — not  only  to  observe  the  President’s  proclamation  of  neu- 
trality but  also  to  abstain  from  either  action  or  speech  which  can 
legitimately  cause  irritation  to  either  of  the  combatants.®^” 

The  Navy  regulations  enjoin  naval  officers  to  observe  strict 
neutrality  on  all  occasions.®^  These  regulations  can  be  enforced 
by  court  martial,  a procedure  resorted  to  in  the  case  of  an  un- 
neutral act  by  a naval  commander  in  1844  during  the  war  be- 
tween Montevideo  and  Buenos  Ayres.®® 

The  obligations  of  prevention  incumbent  upon  neutral  states 
have  been  recognized  by  the  United  States  in  treaties  and  stat- 
utes, and  the  duties  thus  recognized  seem  to  be  in  accord  with 
international  law.  The  failure  of  statutes  to  recognize  the  duty 
to  prevent  sales  of  armed  vessels  to  belligerents  is  only  an  appar- 
ent exception,  as  the  United  States  has  acceded  to  this  principle 
in  the  Treaty  of  Washington  and  the  Hague  conventions  of  1907, 

ssExecutive  Order,  March  lo,  1904,  For.  Rel.,  1904,  p.  185,  Moore’s  Di- 
gest, 7 ;868.  See  also  instructions  to  diplomatic  and  consular  officers,  Aug. 
17,  1914,  Supp.  Am.  Jour.  Int.  Law,  9;ii8,  (Jan.,  1915). 

s^Navy  Regulations,  1913,  sec.  1502,  1633-1624,  1645,  1647. 

^“Moore’s  Digest,  i;i78. 


127]  OBLIGATIONS  OF  NEUTRALS  127 

which  are  according  to  the  constitution  a part  of  the  law  of  the 
land. 

The  means  relied  on  for  enforcing  these  duties  are  (1)  the 
deterrent  effect  of  criminal  punishment  by  fines  and  imprison- 
ment, (2)  the  forfeiture  of  property  involved  in  violations  of 
neutrality,  (3)  the  requirement  of  bonds  of  good  behavior  in  sus- 
picious cases,  (4)  the  grant  of  jurisdiction  to  courts  over  cases 
involving  breaches  of  neutrality,  with  implied  power  to  enforce 
their  judgments,  (5)  direct  executive  action  to  enforce  criminal 
provisions,  expel  or  detain  foreign  vessels,  and  otherwise  pre- 
vent illegal  acts,  with  a resort  to  the  army,  navy,  and  militia  of 
the  United  States  if  necessary,  (6)  control  of  public  officers  by 
executive  action  and  by  courts  martial. 

While  specific  provision  is  made  by  statute  for  the  use  of 
these  means  in  many  cases,  it  seems  probable  that  where  such  au- 
thority is  not  given  by  statute,  executive  and  judicial  officers 
can  apply  appropriate  means  for  enforcing  the  duties  specified 
by  treaty  or  the  Hague  conventions.  Treaties  are  part  of  the  law 
of  the  land,  and  the  executive  and  judiciary,  being  under  oath  to 
enforce  the  laws,  can,  it  would  seem,  use  all  available  means  to 
enforce  them. 

In  the  field  of  international  law  defining  neutral  duties  the 
United  States  holds  an  honored  position.  Its  early  neutrality 
statutes  enforcing  obligations  in  this  field  laid  down  a standard 
of  conduct  which  was  not  required  by  international  law  at  that 
time  but  has  since  become  recognized  as  obligatory.  The  neutral- 
ity act  of  1794  was  infiuential  in  creating  new  international 
law.  Canning  said  of  American  practice  in  this  respect,  ‘‘If  I 
wished  for  a guide  in  the  system  of  neutrality,  I should  take  that 
laid  down  by  America  in  the  days  of  the  presidency  of  Washing- 
ton and  the  secretaryship  of  Jefferson.”®®  This  unique  position 
®®Cited,  Syngman  Rhee,  Neutrality  as  influenced  by  the  United  States^ 
Princeton,  1912,  p.  106.  See  also  opinion  of  J.  W.  Foster,  and  of  Rhee, 
Ibid.,  pp.  104,111.  W.  E.  Hall,  not  inclined  to  flatter  the  United  States,  says 
of  its  practice  in  reference  to  neutrality  obligations,  “The  policy  of  the 
United  States  in  1793  constituted  an  epoch  in  the  development  of  the 
usages  of  neutrality.  There  can  be  no  doubt  that  it  was  intended  and  be- 
lieved to  give  effect  to  the  obligations  then  incumbent  upon  neutrals.  But 
it  represented  by  far  the  most  advanced  existing  opinion  as  to  what  these 
obligations  were,  and  in  some  points  it  even  went  farther  than  authorita- 
tive international  custom  has  up  to  the  present  time  advanced.  In  the 
main,  however,  it  is  identical  with  the  standard  of  conduct  which  is  now 
admitted  by  the  community  of  nations.”  W.  E.  Hall,  A Treatise  on  In- 
ternational Law,  4th  ed.,  London,  1895,  p.  616. 


128 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[128 


is  undoubtedly  due  in  large  measure  to  the  situation  of  the 
United  States  as  the  most  important  power  of  European  civiliza- 
tion remaining  neutral  in  various  European  wars.  It  indicates, 
however,  the  effect  which  municipal  law  may  have  in  creating 
new  international  law. 


CHAPTER  IX.  OBLIGATIONS  OP  VINDICATION. 


INTRODUCTORY 

Duties  of  vindication  are  necessitated  by  the  failure  of  bel- 
ligerent troops,  warships  or  prize  crews  to  observe  their  obliga- 
tions as  belligerents  toward  neutrals,  and  some  of  them  also  im- 
ply a failure  on  the  part  of  the  neutral  state  to  perform  its  du- 
ties of  prevention.  Thus  a neutral  state  is  bound  to  prevent  hos- 
tilities in  its  land  or  water  territory,  but  if  it  fails  in  this  it 
must  perform  its  duty  of  vindication  by  interning  troops,  or  re- 
storing prizes  captured  in  the  course  of  such  hostilities. 

Most  of  the  obligations  of  this  kind  are  specified  in  the 
Hague  conventions,  and  consist  of  measures  to  be  taken  by  the 
neutral  state  in  case  of  violations  of  its  territory  by  land  forces, 
hostilities  in  its  territorial  waters  by  naval  forces  or  violations 
of  the  right  of  asylum  by  belligerent  warships  or  their  prizes. 

There  are  a number  of  general  requirements  laid  down  for 
belligerent  warships  which  a neutral  is  at  liberty  to  modify  by 
law.  Thus  a neutral  state  is  permitted  to  vary  the  general  rule 
demanding  that  all  belligerent  vessels  be  equally  permitted  to 
enter  its  ports,  by  forbidding  such  entrance  to  vessels  which  have 
violated  its  neutrality.^  It  may  also  vary  the  twenty-four  hour 
stay  rule  by  municipal  regulations,^  and  the  general  rule  per- 
mitting no  more  than  three  belligerent  warships  in  a port  at  one 
time.^  The  conventions  also  give  a neutral  power  the  right  to 
grant  asylum  to  belligerent  prizes  on  condition  that  it  sequestrate 
them,  pending  adjudication,  but  this  provision  was  not  ratified 
by  the  United  States.^ 

^Hague  Conventions,  1907,  xiii,  art.  9,  Malloy,  p.  2352. 

^Ibid.,  xiii,  arts.  12-14,  19. 

^Ibid.,  xiii,  art.  15. 

^Ibid.,  xiii,  art.  23.  This  permission  was  a variation  from  the  gen- 
eral rule  laid  down  in  articles  21  and  22  which  forbade  the  giving  of  asy- 
lum to  prizes  except  in  cases  of  “unseaworthiness,  stress  of  weather,  or 
want  of  fuel  or  provisions,”  and  even  then  only  temporarily.  The  United 
States  ratified  the  convention  with  a proviso  excluding  article  23,  thereby 
recognizing  it  as  neutral  duty  to  refuse  to  permit  prizes  to  be  sequestrated 
in  her  ports.  See  Naval  War  College,  International  Law  Situations,  1908, 
p.  76.  It  is  interesting  to  note  that  the  United  States  had  specifically  per- 
mitted the  sequestration  of  prizes  in  a number  of  its  early  treaties.  See 

129 


130  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [130 

International  law  in  these  cases  imposes  a belligerent  duty 
but  no  corresponding  neutral  duty  of  vindication.  The  bellig- 
erent duty  is  for  the  benefit  of  the  neutral  and  if  the  neutral  in- 
dicates by  local  law  that  it  does  not  care  to  avail  itself  of  this 
benefit  international  law  is  unconcerned.  These  subjects  there- 
fore do  not  form  obligations  of  vindication;  they  are  rather  ex- 
ceptions to  those  obligations. 

Eliminating  these  exceptions,  the  duties  of  vindication  rec- 
ognized by  the  United  States  by  treaty  may  be  classified  as  (1) 
the  internment  of  belligerent  troops  violating  neutral  territory,® 
(2)  the  internment  of  belligerent  warships  violating  the  law  of 
asylum,*^  (3)  the  expulsion  of  belligerent  warships  after  a 
twenty-four  hour  stay,  subject  to  exceptions,^  (4)  the  detention 
of  belligerent  warships  in  accordance  with  the  twenty-four  hour 
interval  rule,®  (5)  the  restoration  of  prizes  captured  in  neutral 
waters  or  brought  into  neutral  ports  in  violation  of  the  law  of 
asylum,  and  the  internment  of  the  prize  crew.^  These  are  posi- 
tive duties  imposed  upon  the  neutral  state,  and  failure  to  per- 
form them  will  furnish  grounds  for  diplomatic  complaint  and 
demand  for  reparation  by  the  injured  belligerent. 

The  performance  of  these  duties  involves  an  assertion  of  ju- 
risdiction over  foreign  prizes,  warships  or  armed  forces,  agencies 
which  under  ordinary  circumstances  are  exempt  from  the  juris- 
diction of  any  sovereign  but  their  own.  It  is  therefore  of  im- 
portance to  investigate  the  measures  which  the  United  States 
has  taken  for  performing  its  duties  of  vindication  by  the  exercise 
of  this  extraordinary  jurisdiction.  The  subject  may  be  conven- 
iently divided  into  the  three  parts,  (1)  illegal  prizes,  (2)  illegal 

treaties  with  France,  1778-1789,  art.  17,  p.  474;  1800-1809,  art.  24,  p.  504; 
Netherlands,  1782-1795,  art.  5,  p.  1245;  Sweden,  1783-1799,  revived  1816, 
1827,  art.  19,  p.  1732;  Prussia,  1785-1796,  art.  19,  21,  p.  1493;  Great  Britain, 
1794-1807,  art.  25,  p.  604.  Treaties  with  Tripoli,  1805,  art.  17,  p.  1792  and 
with  Algiers,  1795-1815,  art.  10,  p.  3;  1815-1830,  art.  18,  p.  10,  permitted 
United  States  vessels  to  sequestrate  and  sell  prizes  in  their  ports  and  for- 
bade the  sale  of  prizes  taken  by  any  of  the  Barbary  states  from  the  United 
States  in  a similar  manner.  Asylum  to  merchant  vessels  and  in  most 
cases  to  warships  and  privateers  also  when  necessitated  through  “stress  of 
weather  or  pursuit  of  pirates  or  enemies”  is  provided  for  in  treaties  with 
twenty-five  countries,  a few  of  which  are  still  in  force. 

^Hague  Conventions,  1907,  v,  arts.  11-12,  Malloy,  p.  2300. 

®Ibid.,  xiii,  arts.  21,  24. 

■^Ibid.,  xiii,  arts.  12,  13. 

®Ibid.,  xiii,  art.  8. 

^Ibid.,  xiii,  arts.  3,  21,  24. 


131] 


OBLIGATIONS  OF  NEUTRALS 


131 


acts  of  belligerent  warships,  (3)  violations  of  land  territory. 
The  mere  fact  that  these  duties  are  contained  in  the  Hague  con- 
ventions, which  are  treaties  and  “the  law  of  the  land’’  would 
furnish  ground  for  the  assertion  of  jurisdiction  by  judicial  and 
executive  officers,  but  in  some  cases  jurisdiction  has  been  specifi- 
cally conferred  by  statute,  and  in  others  it  is  necessary  to  con- 
sider the  view  which  the  courts  and  executive  authorities  have 
taken  as  cases  have  arisen.  We  will  therefore  consider  the  sup- 
plementary laws  enacted  for  carrying  out  these  obligations,  and 
the  rules  laid  down  by  the  executive  and  judicial  officers  them- 
selves in  carrying  them  out. 

Illegal  Pirizes. 

The  neutrality  laws  give  the  United  States  district  courts 
a jurisdiction  over  captures  made  in  the  territorial  waters  of 
the  country,^®  and  imply  that  a jurisdiction  exists  over  prizes 
taken  by  privateers  outfitted  in  the  United  States.^^  This  pro- 
vision contained  in  the  original  neutrality  act  of  1794^“  was  en- 
acted as  a result  of  Washington’s  address  to  congress  of  Dec.  31, 
1793,^^  in  which  he  urged  upon  congress  the  enactment  of  neu- 
trality acts,  and  also  provisions  ensuring  a sufficient  jurisdiction 
in  the  courts  to  carry  out  the  duties  of  restoring  illegal  prizes. 
It  seems  probable  that  United  States  courts  can  assume  jurisdic- 
tion over  illegal  prizes  under  their  general  admiralty  and  prize 
jurisdiction  even  in  the  absence  of  statute,  as  was  in  fact  done  in 
the  cases  of  Glass  vs.  The  Betsey^^  and  Talbot  vs.  Jansen,^^  both 
of  which  came  before  the  court  before  the  passage  of  the  first  neu- 
trality act.  The  view  was  emphatically  stated  in  the  case  of  the 
Estrella^®  that  the  jurisdiction  existed  independently  of  statute. 
Furthermore,  so  far  as  the  writer  has  been  able  to  discover,  there 
has  never  been  a case  before  the  court  in  which  the  capture  was 
made  in  the  territorial  waters  of  the  United  States,  and  in  which 

lORev.  Stat.  Sec.  5287,  Penal  Code  of  1910,  sec.  14. 
iiRev.  Stat.  Sec.  5287,  Penal  Code  of  1910,  sec.  14,  gives  the  President 
power  to  utilize  the  military  forces  of  the  country  to  “detain  such  ship  or 
vessel  (violating  the  neutrality  of  the  United  States)  with  her  prize  or 
prizes — in  order  to  restore  the  prize  or  prizes  in  the  cases  to  which  resto- 
ration shall  be  adjudged.” 

i2Act.  June  5,  1794,  i stat.  381. 
i^See  Am.  St.  Pap.,  For.  Rel.,  i ;3i. 
i^Glass  vs.  The  Sloop  Betsey,  3 Dali.  6,  (1794). 
i^Talbot  vs.  Jansen,  3 Dali.  133. 
i®The  Estrella,  4 Wheat.  298,  (1819). 


132 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[132 


therefore  the  jurisdiction  explicitly  conferred  by  statute  would 
strictly  apply.  In  all  the  cases  the  illegality  of  the  prize  has 
been  based  on  an  outfitting  of  the  privateer,  or  augmenting  of 
its  forces,  in  the  United  States,  prior  to  the  capture.  We  may 
therefore  safely  assert  that  the  jurisdiction  exercised  by  United 
States  courts  while  the  country  is  neutral,  over  belligerent  prizes, 
is  not  dependent  on  statute. 

The  nature  of  the  prize  jurisdiction  while  the  country  is 
neutral  has  been  discussed  at  length  in  a number  of  cases  and 
with  a remarkable  concurrence  of  opinion.  The  court  has  always 
insisted  that  its  jurisdiction  does  not  extend  over  the  question  of 
prize  or  not  prize. This  is  a matter  solely  within  the  author- 
ity of  the  prize  courts  of  the  belligerent  country,  and  their  de- 
termination is  conclusive.  The  neutral’s  jurisdiction  over  prizes 
of  war  can  only  arise  where  (1)  its  own  duty  of  vindicating  its 
neutrality  is  involved,  (2)  where  the  capture  was  entirely  with- 
out evidence  of  belligerent  authorization  or  for  other  reason  not 
within  the  belligerent’s  prize  jurisdiction,^®  or  (3)  where  sal- 

i’’L’Invincible,  i Wheat.  238,  261 ; McDonough  vs.  Dannery  and  the 
Ship  Mary  Ford,  3 Dali.  188;  The  Alerta,  9 Cranch,  359,  (1815)  ; The  Es- 
trella, 4 Wheat.  298. 

i®This  situation  occurs  where  the  capture  was  so  clearly  unwarranted 
that  the  belligerent  prize  court  can  not  legitimately  assert  a jurisdiction. 
There  is  of  course  room  for  difference  of  opinion  in  any  case  as  to 
whether  it  could  or  could  not,  and  the  question  virtually  resolves  itself 
into  this;  Is  the  belligerent  prize  court’s  assertion  of  its  own  jurisdic- 
tion to  be  considered  conclusive?  In  Glass  vs.  The  Sloop  Betsey,  (3  Dali. 
6,  1794)  the  supreme  court  upheld  jurisdiction  over  a capture  by  a French 
privateer,  apparently  on  the  sole  ground  that  being  neutrally  owned  the 
vessel  was  not  liable  to  condemnation  in  a French  Prize  court.  It  is 
doubtful  whether  such  a jurisdiction  would  now  be  maintained.  In  Rose 
vs.  Himely,  (4  Cranch  241,  1808)  the  prize,  owned  by  an  American,  Rose, 
was  seized  on  the  high  seas  near  Cuba  for  breach  of  municipal  regulations 
and  after  sale  to  Himely  brought  to  Charleston.  Here  it  was  libeled  by 
the  original  owner,  Rose,  and  while  in  the  custody  of  the  United  States 
District  court,  a French  Prize  court  in  Santa  Domingo  issued  a decree  of 
condemnation  upon  which  Himely  based  his  title.  The  majority  of  the 
court  though  disagreeing  in  reasons  agreed  that  the  Santa  Domingo  court 
lacked  jurisdiction  and  consequently  Himely  had  no  title.  Three  justices 
denied  its  jurisdiction  on  the  ground  that  actual  custody  of  the  prize  was 
necessary.  Two  justices,  including  Chief  Justice  Marshall,  held  that  cap- 
tures on  the  high  seas  for  breach  of  municipal  regulations  were  contrary 
to  international  law  and  so  conferred  no  jurisdiction  upon  the  prize  court 
of  the  capturing  country.  Justice  Johnson  dissented  from  the  decision, 


133] 


OBLIGATIONS  OP  NEUTRALS 


133 


vage  or  other  maritime  claims  of  neutral  subjects  are  involved.^® 
In  all  of  these  cases  the  prize  must  have  been  brought  within  the 
neutral’s  jurisdiction  voluntarily.  A neutral  state  has  no  right 
to  make  seizures  outside  of  its  own  territory-®  or  to  assume  juris- 

holding  that  the  prize  court’s  jurisdiction  depended  upon  municipal  and 
not  international  law  and  that  its  own  assertion  of  jurisdiction  must  be 
regarded  as  conclusive  by  foreign  courts;  hence  the  Santa  Domingo  court 
had  jurisdiction  and  Himely’s  title  was  good.  The  case  does  not  refer  to 
prize  jurisdiction  in  pursuance  of  belligerent  rights,  but  the  principle  that 
there  are  limits,  beyond  which  a foreign  prize  court’s  assertion  of  its  own 
jurisdiction  will  not  be  regarded  as  conclusive,  although  denied  by  Justice 
Johnson,  seems  to  have  been  settled.  Consequently  there  are  cases  in 
which  the  courts  of  a neutral  state  may  exercise  jurisdiction  over  a prize 
which  the  belligerent  claims  the  right  to  adjudicate,  and  thereby  itself  de- 
termine upon  the  belligerent’s  rights. 

i^This  situation  occurs  when  the  determination  of  belligerent  prize 
rights  arises  incidentally  to  some  ordinary  maritime  claim  of  a neutral 
subject.  In  McDonough  vs.  Dannery  and  the  Ship  Mary  Ford,  (3  Dali. 
188,1795)  a French  squadron  had  captured  the  Mary  Ford,  a British  vessel, 
and  after  attempting  to  sink  her,  left  her  derelict.  She  was  rescued  by  a 
United  States  vessel  which  brought  her  to  Boston  and  libeled  her  for  sal- 
vage. Both  French  and  British  claimants  put  in  an  appearance,  the  French 
claiming  the  balance  after  deduction  of  salvage,  as  legal  prize  of  war,  and 
the  British  claiming  this  balance  as  original  owners  of  the  vessel.  The 
supreme  court  decreed  one-third  salvage  to  the  United  States  rescuers,  and 
the  balance  to  the  French  captors,  holding  that  title  to  an  enemy  vessel 
changed  hands  immediately  on  capture.  Here  the  court  really  decided  a 
question  of  prize  as  between  the  two  belligerents,  but  it  was  only  done  in- 
cidentally to  the  adjudication  of  the  neutral  parties’  claims  to  salvage,  and 
could  be  regarded,  as  was  said  in  discussing  the  case  by  Justice  Johnson 
in  L’Invincible,  (i  Wheat.  238,  261)  to  have  been  a recognition  of  the  title 
of  the  last  possessor  rather  than  a determination  of  belligerent  rights.  In 
the  Invincible  the  court  again  assumed  jurisdiction,  where  neutral  salvage 
rights  were  involved,  and  in  DelCol  vs.  Arnold,  (3  Dali.  333),  jurisdiction 
over  a prize  sequestrated  in  Charleston  was  based  on  a maritime  tort  com- 
mitted against  a neutral  owned  vessel  by  the  belligerent  claimant  of  this 
prize.  The  case  was  questioned  in  L’Invincible,  but  justified  on  the  ground 
that  consent  had  been  given  by  the  belligerent  claimant  to  submit  the  pro- 
ceeds of  his  prize  to  the  neutral  jurisdiction. 

20This  statement  was  denied  by  Chief  Justice  Marshall  in  Church  vs.. 
Hubbart,  2 Cranch  187,  (1804),  Scott,  343;  He  upheld  a seizure  by  Brazil 
outside  of  territorial  waters  in  pursuance  of  a local  law.  The  view  stated 
was  however  maintained  by  Marshall  in  Rose  vs.  Himely,  4 Cranch  281, 
(1808)  ; See  also  Hudson  vs.  Guestier,  6 Cranch  281,  (1810)  ; The  Appol- 
lon,  9 Wheat.  362.  In  the  case  of  the  Itata  submitted  to  arbitration,  the 


134  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [134 

diction  over  vessels  which  are  not  within  the  actual  custody  of 
its  court.^^ 

The  first  situation  mentioned  is  the  one  of  immediate  impor- 
tance to  the  present  subject.  In  the  case  of  the  Brig  Alerta,-^ 
Justice  Washington  clearly  defined  the  nature  of  this  jurisdic- 
tion. ‘ ‘ The  general  rule  is  undeniable  that  the  trial  of  captures 
made  on  the  high  seas,  jure  belli,  by  a duly  commissioned  vessel 
of  war,  whether  from  an  enemy  or  a neutral,  belongs  exclusively 
to  the  courts  of  that  nation  to  which  the  captor  belongs.  To  this 
rule  there  are  exceptions  which  are  as  firmly  established  as  the 
rule  itself.  If  the  capture  be  made  within  the  territorial  limits 
of  a neutral  country  into  which  the  prize  is  brought  or  by  a pri- 
vateer which  had  been  illegally  equipped  in  such  country,  the 
prize  courts  of  such  neutral  country  not  only  possess  the  power, 
but  it  is  their  duty  to  restore  the  property  so  illegally  captured 
to  the  owner.  This  is  necessary  to  the  vindication  of  their  own 
neutrality.  ’ ’ 

The  two  cases  are  distinguished  by  Justice  Washington,  (1) 
where  the  capture  is  made  in  the  territorial  waters  of  the  United 
States,  and  (2)  where  the  capture  is  made  by  a vessel  which  was 
armed  or  had  its  forces  augmented  in  the  United  States  in  viola- 
tion of  neutrality. 

(1)  In  the  first  case  jurisdiction  is  specifically  granted  by 
statute-^  but  has  never  been  exercised.  In  the  case  of  the 
Grange,"^  Attorney  General  Randolph  gave  an  official  opinion 
that  a vessel  captured  by  a belligerent  in  Delaware  bay,  which 
he  regarded  as  territorial  water,  should  be  restored  to  the 
United  States,  but  as  the  vessel  was  no  longer  infra  praesidia, 
no  question  of  a federal  court’s  prize  jurisdiction  arose.  In  sev- 
eral cases  where  the  United  States  has  been  belligerent,  the  neu- 
tral state’s  right  to  prizes  captured  in  its  territorial  waters  has 
been  upheld^^  but  apparently  the  courts  have  never  had  a direct 

United  States  was  held  liable  in  damages  for  the  seizure  of  a vessel  in 
Chilean  territorial  waters.  See  Moore,  Digest  of  International  Arbitra- 
tions, 3;3o67-307i. 

2iRose  vs.  Himely,  4 Cranch  241,  (1808). 

22The  Alerta,  9 Cranch,  359,  364,  (1815). 

23Revised  Statutes,  Sec,  5287.  Penal  Code  of  1910,  sec.  14. 

24^The  Grange,  i op.  33,  (1793).  On  request  this  vessel  was  returned 
by  the  capturing  belligerent  power.  Moore’s  Digest,  7;io86. 

25The  Anne,  3 Wheat.  435,  (1818)  ; The  Florida,  loi  U.  S.  37,  (1879)  ; 
The  Sir  Wm.  Peel,  5 Wall.  517;  The  Adela,  6 Wall.  266.  In  Stewart  vs. 
United  States,  i Ct.  Cl.  113,  (1864),  the  court  asserted  that  the  United 


135] 


OBLIGATIONS  OF  NEUTRALS 


135 


opportunity  to  assert  jurisdiction  over  such  a prize  while  the 
country  was  neutral. 

(2)  In  the  case  of  prizes  captured  by  vessels  which  pre- 
viously had  violated  the  United  States  neutrality  laws,  the  exer- 
cise of  jurisdiction  by  courts  is  implied  in  the  neutrality  stat- 
utes,^® and  has  been  frequently  exercised.  During  the  wars  im- 
mediately following  the  French  revolution,  American  adventur- 
ers, moved  by  republican  sympathy  for  revolutionary  France 
and  possibly  fully  as  much  by  hopes  of  gain,  frequently  fitted 
out  privateers  in  American  ports,  obtained  French  Letters  of 
Marque  and  forthwith  cruised  against  England,  with  whom 
France  was  at  war.  It  often  happened  that  prizes  made  by  these 
vessels  would  be  brought  into  American  ports  in  accordance 
with  the  right  claimed  by  France  under  the  treaty  of  1778;“’’ 
in  which  case  a representative  of  the  original  neutral  or  English 
owner,  generally  the  English  consul,  would  file  a libel  for  resti- 
tution. The  court  from  the  first  assumed  prize  jurisdiction  in 
such  cases,^®  and  in  several  cases  restored  the  vessel.^®  A similar 
situation  arose  during  the  revolutionary  struggles  of  the  South 
American  republics  against  Spain  and  Portugal.  Again 
thoughts  of  pecuniary  gain  and  republican  sympathy  combined 

States  had  a just  claim  against  Portugal  for  permitting  a prize  to  be  re- 
captured by  Great  Britain  in  her  territorial  waters  during  the  war  of  1812, 
and  that  Portugal  had  a just  claim  against  Great  Britain  for  performing 
this  act.  Indemnity  had  been  obtained  from  Portugal  for  some  of  these 
seizures  by  the  treaty  of  1851.  See  Malloy  treaties,  p.  1458,  and  also  Gen- 
eral Armstrong  Arbitration,  Moore,  Int.  Arb.,  211071.  Commodore  Stew- 
art’s claims  having  been  ignored  in  this  settlement,  it  was  held  he  had  no 
claim  against  the  United  States.  Supra,  p.  107. 

26Revised  Statutes,  sec.  5287,  Penal  Code  of  1910,  sec.  14.  Supra,  p. 
131,  note  II. 

27Treaty  with  France,  1778-1798,  art.  17,22,  Malloy  treaties,  p.  474. 

“®Talbot  vs.  Jansen,  3 Dali.  133,  (1796)  ; Moodie  vs.  The  Alfred,  3 
Dali.  307,  (1796)  ; Moodie  vs.  The  Phoebe  Ann,  3 Dali.  319,  (1796)  ; Geyer 
vs.  Michel  and  the  Ship  Den  Onzekeron,  3 Dali.  285 ; Moodie  vs.  The 
Betty  Carthcart,  Fed.  Gas. 9,  742,  3 Dali.  288,  note;  Wilkinson  vs.  The  Bet- 
sey, Fed.  Gas.  17,750,  (1799)  ; Moodie  vs.  The  Brothers,  Fed.  Gas.  9,743, 
(1799)  ; British  Gonsul  vs.  The  Nancy,  Fed.  Gas.  1898,  (1799)  ; Moodie  vs. 
The  Amity,  Fed.  Gas.  9741. 

^^Restoration  was  decreed  to  a neutral  Dutch  claimant  in  Talbot  vs. 
Jansen,  3 Dali.  133,  (1796),  and  to  an  English  claimant  in  Moodie  vs.  The 
Betty  Garthcart,  Fed.  Gas.  9,742,  3 Dali.  288,  note,  and  British  Gonsul  vs. 
The  Nancy,  Fed.  Gas.  1898,  (1799). 


136 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[136 


to  lure  American  privateers  into  the  fray,  and  frequent  cases 
appear  in  the  reports  with  the  Spanish  or  Portuguese  consul 
as  libellant.  Again  the  United  States  courts  asserted  ju- 
risdiction and  as  before  they  generally  decreed  restitution  to 
the  original  owner.^®  The  effrontery  with  which  these  priva- 
teers sometimes  put  forth  their  claims  was  astonishing.  On  several 
occasions  the  expeditions  appear  to  have  been  nothing  short  of 
piracy,  as  captures  were  made  before  any  commission  was 
obtained  from  the  South  American  insurgents.  Under  such 
circumstances  the  owner  of  the  privateer  would  put  forth  a 
claim  of  expatriation^^  or  of  a sale  of  the  privateer  to  a ficti- 
tious South  American  party,^^  claims  which  were  for  the  most 
part  ignored  by  the  court.^^ 

soRestitution  was  denied  in  La  Amistad  de  Rues,  5 Wheat.  385,  (1820)  ; 
the  case  was  remanded  for  further  evidence  in  The  Divina  Pastora,  4 
Wheat.  52,  (1814)  and  in  the  following  cases  restitution  was  decreed; 
The  Brig  Alerta  vs.  Moran,  9 Cranch,  359,  (1815)  The  Estrella,  4 Wheat. 

298,  (1819)  ; La  Conception,  6 Wheat.  235,  (1821)  The  Bello  Corrunes,  6 

Wheat.  152,  (1821)  ; The  Santissima  Trinidad,  7 Wheat.  285,  (1827)  ; The 
Gran  Para,  7 Wheat.  471,  (1822)  ; The  Arrogante  Barcelones,  7 Wheat. 
496,  (1822)  ; The  Santa  Maria,  7 Wheat.  490;  The  Monte  Allegre,  7 Wheat. 

520,  (1822)  ; The  Nereyda,  8 Wheat  108,  (1823)  ; The  Fanny,  9 Wheat. 

659,  (1824). 

3iThe  Gran  Para,  7 Wheat  471,  (1822). 

32LaNereyda,  8 Wheat  108,  (1823)  ; The  Monte  Allegre,  7 Wheat  520,. 
(1822). 

3^In  some  dicta  in  cases  of  this  character  the  court  expressed  the 
opinion  that  a bone  fide  transfer  of  the  prize  to  an  innocent  third  party 
destroyed  the  taint  of  illegality,  (The  Arrogante  Barcelona,  7 Wheat. 
496,  1822)  but  where  such  a case  arose  restitution  of  the  prize  was  decreed 
(The  Fanny,  9 Wheat.  658,  1824).  A bona  fide  sale  of  the  privateer  after 
the  illegal  outfit  in  the  United  States  was  held  to  remove  the  taint  of  ille- 
gality from  subsequent  captures  but  such  sale  must  be  clearly  proved  (The 
Monte  Allegre,  7 Wheat.  520,  1822;  Moodie  vs.  The  Alfred,  3 Dali.  307, 
1796).  It  was  held  that  making  of  repairs  with  augmentation  of  force  did 
not  amount  to  a breach  of  neutrality  and  consequently  did  not  make  prizes 
illegal  (Moodie  vs.  The  Phoebe  Ann,  3 Dali.  319,  1795;  Geyer  vs.  Michel 
and  the  Ship  Den  Onzekeran,  3 Dali.  285).  A sale  in  the  United  States  of 
prizes  captured  under  a French  commission,  being  impliedly  permitted  by 
the  French  treaty  of  1778,  (art.  17, 22,  Malloy,  p.  474)  was  held  to  be  no 
breach  of  neutrality  and  hence  did  not  make  the  prize  illegal,  (Moodie  vs. 
The  Amity,  Fed.  Gas.,  9741).  The  United  States  never  admitted  that 
France  had  an  absolute  right  of  sequestrating  and  selling  prizes  in  the 
United  States  under  this  treaty  (Moore’s  Digest,  71936).  Such  sales  are 
now  forbidden  by  international  law  (Hague  Conventions,  1907,  XIII,  art. 


137] 


OBLIGATIONS  OP  NEUTRALS 


137 


It  appears  that  the  law  of  the  United  States  permits  of 
courts  exercising  jurisdiction  over  illegal  prizes  and  disposing 
of  them  in  a manner  to  fulfill  the  state’s  neutral  obligation  of 
vindication.  It  must  be  noted  that  the  exercise  of  this  juris- 
diction implies  custody  of  the  prize.  If  the  prize  is  in  a foreign 
port  the  United  States  courts  have  no  jurisdiction,  although 
the  case  may  be  such  that  the  government  of  the  United  States 
is  under  an  obligation  to  demand  its  return.^^ 

ILLEGAL  ACTS  BY  BELLIGERENT  WARSHIPS. 

The  duty  of  vindication  following  an  illegal  act  by  a bel- 
ligerent warship  may  involve  the  exercise  of  jurisdiction,  (1) 
over  the  officers  and  crew  of  the  vessel  or  (2)  over  the  vessel 
itself.  Formerly  a distinction  was  drawn  between  cases  in- 
volving public  warships  and  those  involving  privateers.  As 
privateering  is  now  technically  abolished  this  distinction  is  no 
longer  important,  and  even  before  its  abolition  the  courts  de- 
clared that  for  most  legal  purposes  privateers,  bearing  a com- 
mission of  the  sovereign,  were  in  the  same  status  as  public 
warships.®^ 

(1)  It  was  held  in  an  opinion  of  Attorney  General  Nelson 
in  1844^®  that,  although  belligerent  public  vessels  themselves 
are  not  subject  to  the  jurisdiction  of  United  States  courts,  their 
commander  and  officers  are  and  can  be  criminally  prosecuted 
for  breaches  of  the  neutrality  statutes.  He  said,  ‘‘the  very 
purpose  of  the  act  would  be  defeated  were  it  otherwise;  and 
there  is  no  principle  of  which  I am  aware  which  exempts  from 
responsibility  for  criminal  acts  within  our  jurisdiction  the 
commander  or  officers  of  ships  of  war  of  other  nations  with 
whom  we  are  at  peace.”  While  there  seem  to  be  no  cases  in 
which  prosecution  of  the  officers  of  men  of  war  has  been  under- 

21,  Malloy,  p.  2361;  Moore’s  Digest,  7;935-938).  In  any  case  a bone  fide 
condemnation  in  a recognized  court  was  held  to  transfer  title  conclusively, 
in  the  prize,  but  the  condemnation  must  be  satisfactorily  evidenced  (La 
Nereyda,  8 Wheat.  108,  1823),  Where  none  of  these  circumstances  inter- 
vened, restitution  to  the  original  owner  was  decreed,  but  claims  for  further 
damages  by  the  injured  owner  of  the  prize  were  denied  (LaAmistad  de 
Rues,  5 Wheat.  385).  Supra  p.  108,  note  7. 

34See  Hague  Conventions,  1907,  xiii,  art.  3,  Malloy,  p.  2359  and  United 
States  understanding  of  it,  Senate  Resolution  of  Apr.  17,  1908,  Malloy, 
p.  2366. 

^^LTnvincible,  i Wheat.  238,  (1816). 

2®Nelson,  Att.  Gen.,  4 op.  336,  (1844). 


138  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [138 

taken,  the  commanders  of  privateers  holding  commissions  of 
foreign  belligerent  states  have  been  prosecuted  when  it  could 
be  proved  that  they  were  still  American  citizens  as  is  necessary 
for  prosecution  under  the  first  section  of  the  neutrality  act.®^ 
If  a privateer  is  to  be  regarded  as  subject  to  the  same  legal 
exemption  as  a man  of  war  it  would  seem  that  these  cases  are 
in  accord  with  Attorney  General  Nelson’s  opinion.  Prosecu- 
tion has  never  been  attempted  of  commanders  of  privateers 
under  sections  of  the  neutrality  acts  which  are  not  directed 
against  citizens  alone,  as  for  instance  section  five,®®  which  pro- 
hibits the  augmentation  of  force  of  warships  or  privateers  in 
the  territory  of  the  United  States  by  any  person.  A very  simi- 
lar case  arose  in  the  criminal  prosecution  of  Alexander  McLeod 
by  the  State  of  New  York  in  1841.®^  He  was  a soldier  acting 
under  authority  of  Great  Britain,  but  nevertheless  New  York 
maintained  its  jurisdiction  to  punish  him  criminally  for  a homi- 
cide committed  in  that  capacity,  in  the  State. 

At  present  international  law  seems  to  exempt  the  officers 
and  crew  of  public  vessels  from  local  jurisdiction  so  long  as 
their  acts  are  in  pursuance  of  official  business  or  take  place 
entirely  within  the  vessel.*®  This  exemption,  however,  does  not 
extend  to  acts  done  on  land  in  violation  of  local  laws,  and  if 
the  commander  of  a warship  is  engaged  in  augmenting  the  force 
of  his  vessel  by  the  purchase  of  military  materials  or  the  re- 
cruitment of  men  in  the  territory  of  the  United  States  and 
outside  of  his  vessel,  it  seems  probable  that  he  would  be  liable 
to  the  criminal  provisions  of  the  neutrality  act,  although  in 
such  a case  undoubtedly  diplomatic  protest  would  be  resorted 
to  rather  than  criminal  prosecution. 

The  criminal  prosecution  of  the  officers  of  warships  is  not 
itself  a duty  of  vindication.  Internment  of  such  officers  in 
certain  cases  is  the  action  required  of  neutral  states.  It  would 
seem  that  executive  authorities  can  exercise  jurisdiction  over 
foreign  naval  forces  to  perform  the  duties  required  by  treaties. 
The  internment  of  land  forces  has  been  upheld  in  the  courts^^ 
and  it  is  probable  that  the  same  action  as  to  naval  forces  is 
permitted  by  the  law  of  the  United  States. 

S.  vs.  Isaac  Williams,  Fed.  Cas.  17,708,  2 Cranch  82;  note: 
In  re  Henfield,  Fed.  Cas.  6360,  (i793)- 

38Revised  Statutes,  5285,  Penal  Code  of  1910,  sec.  12. 

89People  vs.  McLeod,  (N.  Y.)  25  Wend.  483,  i Hill  375,  (1841). 
^oSee  Moore’s  Digest,  2;  sec.  256. 

4iEx  Parte  Toscano,  208  Fed.  Rep.  938,  (1913)- 


139] 


OBLIGATIONS  OF  NEUTRALS 


139 


(2)  Whether  United  States  courts  can  exercise  jurisdic- 
tion over  foreign  public  vessels  which  have  violated  the  neutral- 
ity of  the  United  States  is  a question  of  difficulty.  It  has  been 
noted  that  courts  can  exercise  jurisdiction  over  the  prizes 
captured  by  belligerent  privateers  or  cruisers  in  certain  cases. 
The  exercise  of  jurisdiction  over  the  privateer  or  warship  itself 
is  an  entirely  different  question.  In  the  neutrality  statutes 
forfeiture  of  privateers  fitted  out  in  the  United  States  for  un- 
neutral purposes  is  provided  for,^^  but  this  may  be  intended 
to  refer  to  cases  where  the  vessel  was  apprehended  before  being 
commissioned  by  the  foreign  power,  and  so  does  not  necessarily 
imply  a grant  of  jurisdiction  over  foreign  public  vessels.  It 
has  however  been  interpreted  so  to  apply.  In  the  case  of  the 
Cassius, which  was  a French  public  vessel  originally  fitted  out 
in  the  United  States  in  violation  of  the  neutrality  laws,  the 
vessel  was  held  for  a long  time  pending  litigation  and  ultimately 
released  on  a technicality.  France  had  protested  at  the  exercise 
of  jurisdiction  over  this  vessel  and  finally  abandoned  it  with 
the  intention  of  protesting  the  matter  diplomatically.  Secre- 
tary of  War  Pickering  in  referring  to  this  case  upheld  the 
court’s  jurisdiction,^^  for  he  thought  if  forfeiture  could  not  be 
had  in  such  cases  the  neutrality  acts  could  be  completely  evaded 
by  transferring  illegally  fitted  out  vessels  to  the  foreign  gov- 
ernment at  their  first  port.  The  exemption  of  foreign  war- 
ships from  local  jurisdiction  was  denied  by  Attorney  General 
Bradford  in  an  opinion  of  1794^®  in  which  he  supported  the 
execution  of  writs  of  habeas  corpus  on  a British  public  vessel 
in  an  American  port,  for  the  purpose  of  releasing  American 
citizens  held  on  board.  This  action  gave  rise  to  a protest  by  the 
British  minister. 

The  better  opinion  however  seems  to  be  that  expressed  by 
Chief  Justice  Marshall  in  the  Schooner  Exchange  vs.  Mc-Fad- 
don,^®  in  which  case  the  court  refused  juridiction  of  a French 
public  vessel  which  had  entered  port  in  stress  of  weather  and 
which  was  claimed  by  a United  States  citizen  as  having  been 

^2Revised  Statutes,  sec.  5283,  Penal  Code  of  1910,  sec.  ii. 

^^Ketland  vs.  The  Cassius,  2 Dali.  3,65.  See  also  U.  S.  vs.  Peters, 
3 Dali.  121,  which  was  an  earlier  case  involving  this  vessel,  in  which  the 
court’s  jurisdiction  was  denied. 

^^Letter  of  Sec.  of  State  Pinckney,  Oct.  i,  1795,  Am.  St.  Pap.,  For. 
Rel.,  1:634. 

^^Bradford,  Att.  Gen.,  i op.  47,  (1794). 

*®The  Schooner  Exchange  vs.  McFaddon,  7 Cranch,  116,  (1812). 


140  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [140 

illegally  made  prize  by  the  French.  The  court  held  that  while 
the  principle  of  territorial  sovereignty  was  absolute,  comity  and 
custom  demanded  that  public  vessels  be  excepted  from  the 
general  rule,  and  the  court  would  infer  that  the  government 
intended  to  observe  the  customary  rule  of  comity  unless  it  had 
expressly  declared  the  contrary.  The  exemption  of  foreign 
public  vessels  from  jurisdiction  was  emphatically  maintained 
by  Attorney  General  Cushing  in  1855^^  the  theory  of  extra- 
territoriality being  asserted.  As  has  been  noted  Attorney  Gen- 
eral Nelson,  while  maintaining  that  the  officers  of  public  vessels 
were  subject  to  the  territorial  jurisdiction,  admitted  that  the 
vessels  themselves  were  exempt.^®  This  appears  to  be  the  rule 
and  therefore,  although  United  States  courts  can  assume  juris- 
diction over  illegal  prizes,  they  cannot  over  foreign  public  vessels 
even  when  they  have  violated  a duty  of  international  law.'*® 
Although  courts  cannot  exercise  jurisdiction  over  foreign 
public  vessels  violating  neutrality,  it  is  clear  that  executive 
officers  must  do  so,  if  the  duties  of  vindication  are  to  be  carried 
out.  If  a court  exercised  jurisdiction  it  would  have  authority 
to  declare  the  vessel  forfeited  and  thus  change  its  ownership. 
Executive  officers  can  exercise  no  such  authority  as  this,  but 
they  can  expel  or  detain  a public  vessel,  render  it  incapable  of 
putting  to  sea  and  intern  its  crew  when  occasion  demands.  The 
power  to  expeP®  public  vessels  is  specifically  given  in  the  neu- 
trality laws  to  the  president,  and  in  the  execution  of  this  power 
he  may  use  the  land  and  naval  force  and  the  militia  of  the 
country,  if  necessary.  The  power  to  detain  vessels  violating 
neutrality  statutes  is  given  to  the  president^^  and  also  to  cus- 
tom officers^®  when  circumstances  render  an  unneutral  use 
probable.  This  does  not  apply  to  belligerent  war  vessels  in 
general.  It  has  been  held  that  the  president’s  power  can  only 
be  used  in  aid  of  judicial  process,  and  only  military,  not  civil, 
officers  can  be  employed.®^  A customs  officer  detaining  a vessel 

'*^The  Sitka,  7 op.  123,  (1855)  Att.  Gen.  Cushing.  See  also  8 op.  73. 

^®Nelson,  Att.  Gen.,  4 op.  336,  (1844). 

‘*^For  discussion  of  the  exemption  of  public  vessels  from  territorial 
jurisdiction  see  Hall,  International  Law,  p.  195. 

soRev.  Stat.  5288,  Penal  Code  of  1910,  sec.  15. 

®iRev.  Stat.  5287,  Penal  Code  of  1910,  sec.  14. 

®2Rev.  Stat.  5290,  Penal  Code  of  1910,  sec.  17. 

®3Gelston  vs.  Hoyt,  3 Wheat.  246;  See  also  4 op.  336,  (1844),  some- 
what modified  in  21  op.  273. 


141] 


OBLIGATIONS  OF  NEUTRALS 


141 


under  this  provision  does  so  at  his  own  risk.®^  On  account  of 
these  interpretations  the  statutory  provisions  seem  insufficient 
to  carry  out  the  country’s  duties  of  vindication.  However,  as 
duties  specified  in  treaties  and  conventions  can  probably  be 
exercised  by  the  president  in  the  absence  of  express  statutory 
authority,^®  the  omission  is  not  serious. 

VIOLATIONS  OF  LAND  TERRITORY. 

The  principal  duty  of  vindication  required  under  this  head 
is  the  internment  of  belligerent  troops  entering  neutral 
territory.  Although  not  acted  upon  by  New  York  in  the  case 
of  People  vs.  McLeod,®®  the  general  principle  that  military 
forces  are  exempt  from  territorial  jurisdiction  is  recognized  in 
the  United  States.  The  doctrine  was  stated  in  reference  to 
troops  passing  through  territory  under  a license,  in  dicta  by 
Chief  Justice  Marshall  in  The  Exchange  vs.  McPaddon,®’’  and 
in  reference  to  the  rights  of  troops  engaged  in  hostilities  in 
several  cases  arising  out  of  the  civil  war.®®  This  does  not,  how- 
ever, prevent  executive  officers  performing  duties  imposed  upon 
the  country  by  treaty.  In  the  case  of  Ex  Parte  Toscano,®* 
which  came  before  a United  States  circuit  court  in  1913,  the 
facts  were  as  follows:  During  the  civil  war  in  Mexico  a band 
of  federalist  troops  defeated  at  Novco  crossed  the  frontiers  of 
the  United  States  and  voluntarily  surrendered  to  armed  forces 
of  the  United  States.  Under  order  of  the  president  they  were 
disarmed,  kept  for  a time  at  El  Paso  and  then  sent  to  Ft. 
Rosecrans,  California.  Toscano,  one  of  the  interned  soldiers, 
sought  release  on  habeas  corpus,  on  the  ground  that  he  was 
unconstitutionally  deprived  of  liberty  without  “due  process  of 
law”.  This  the  court  denied,  holding  that  the  exercise  of  the 
authority  by  the  president  was  fully  justified  by  the  Hague 
convention  of  1907,®®  which  had  been  ratified  by  both  the  United 
States  and  Mexico.  “The  treaty,”  it  said,  “is  full  and  com- 
plete and  no  legislation  is  necessary  to  its  enforcement.”  If 
congress  has  not  provided  special  officers  for  carrying  it  out 

^^Hendricks  vs.  Gonzalez,  67  Fed.  Rep.  351. 

Parte  Toscano,  208  Fed.  Rep.  938,  (1913). 

®®People  vs.  McLeod,  (N.  Y.)  25  Wend.  483;  i Hill  375,  (1841). 

®’'The  Schooner  Exchange  vs.  McFaddon,  7 Cranch  116,  (1812). 

58Neal  Dow  vs.  Johnson,  100  U.  S.  158,  170,  (1879)  ; Coleman  vs. 
Tennessee,  97  U.  S.  509,  (1878). 

®9Ex  Parte  Toscano,  208  Fed.  Rep.  938,  (1913). 

®oHague  Conventions,  1907,  v,  art.  ii,  Malloy,  p.  2298. 


142 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[142 


the  duty  devolves  upon  the  president  as  chief  executive.  The 
Hague  treaty  itself  and  the  execution  of  its  terms  were  held 
to  be  sufficient  to  give  the  applicant  his  “due  process  of  law’’, 
and  the  writ  was  denied.  From  this  case  it  seems  that  United 
States  law  adequately  provides  for  performing  this  duty  of 
vindication. 

The  United  States  has  provided  for  carrying  out  its  duties 
of  vindication  (1)  by  conferring  jurisdiction  on  the  federal 
courts  of  illegal  prizes,  with  power  to  restore  and  liberate  such 
prizes  according  to  international  law,  and  (2)  by  conferring 
authority  on  executive  officers  to  expel,  detain  and  intern  war 
vessels  and  their  officers  and  crews  and  to  intern  belligerent 
troops  crossing  the  frontier.  The  degree  to  which  the  interna- 
tional duties  of  vindication  are  performed  depends  upon  the 
rules  of  law  acted  upon  by  courts  and  executive  officers  in 
exercising  their  jurisdiction  in  these  matters.  The  rules  fol- 
lowed by  courts  are  found  in  court  decisions,  and  are  based  on 
the  principle  that  courts  of  the  United  States  apply  interna- 
tional law  as  part  of  the  law  of  the  United  States,  while  execu- 
tive officers  are  bound  by  the  principle  that  treaties  are  the 
law  of  the  land  and  so  perform  the  duties  of  vindication  as 
therein  specified.  With  these  principles  it  seems  that  adequate 
provision  is  made  in  the  law  of  the  United  States  for  carrying 
out  the  duties  of  vindication  imposed  by  international  law. 


PART  III.  OBLIGATIONS  AS  A BELLIGERENT 
TOWARD  NEUTRALS 


CHAPTER  X.  INTRODUCTORY. 

The  obligations  of  neutral  to  belligerent  states  have  been 
classified  under  the  five  heads,  duties  of  (1)  abstention,  (2) 
acquiescence,  (3)  prevention,  (4)  vindication,  (5)  reparation. 
In  order  to  show  the  relation  of  belligerent  duties  to  neutral 
duties  we  will  consider  belligerent  duties  under  the  same 
classification. 

It  must,  however,  be  constantly  borne  in  mind  that  the 
position  of  a belligerent  is  very  different  from  that  of  a neutral. 
A belligerent  is  always  active,  while  a neutral  is  passive.  Con- 
sequently, while  it  is  neutral  duties  that  are  prominent,  it  is 
belligerent  rights  which  are  most  noticed.  Neutral  duties  are 
restrictions  upon  the  ordinary  rights  of  an  independent  state, 
while  belligerent  duties  are  simply  limits  set  to  extraordinary 
rights. 

(1)  The  belligerent’s  duties  of  abstention  are  largely 
equivalent  in  substance  to  a neutral  state’s  duties  of  prevention. 
What  the  neutral  is  bound  to  prevent,  the  belligerent,  in  most 
cases,  though  not  always,  is  bound  to  abstain  from.  Thus  a 
belligerent  state  is  bound  to  abstain  from  violations  of  neutral 
territory  and  injury  to  neutral  individuals.  These  duties  so 
far  as  encumbent  upon  the  state  as  such  are  beyond  the  prov- 
ince of  municipal  law  to  control  and  so  beyond  the  scope  of  our 
subject.  When  a belligerent  neglects  its  duties  of  abstention, 
as  Germany  did  in  the  violation  of  Belgian  neutrality,  it  is  an 
act  of  sovereignty  for  which  the  state  is  internationally  respon- 
sible but  which  can  not  be  controlled  by  municipal  law.  Some 
duties  of  this  character  have  been  given  recognition  in  treaties 
and  international  agreements,  but  such  stipulations  are  for  the 
most  part  directed  to  the  political  organs  of  government  and 
constitute  political  questions  which  can  not  be  enforced  as  mu- 
nicipal law.  An  exception,  however,  may  be  made  in  one  case. 
The  duty  to  abstain  from  interference  with  neutral  commerce^ 

143 


144  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [144 

except  as  permitted  by  international  law,  is  enforced  by  munici- 
pal law  through  the  adjudication  of  all  neutral  seizures  in  prize 
courts.  This  method  of  enforcing  duties  of  abstention  will 
therefore  be  considered. 

(2)  The  belligerent’s  duties  of  acquiescence  relate  largely 
to  the  neutral’s  duties  of  vindication.  In  performing  these 
duties  the  neutral  state  subjects  belligerent  troops,  public  ves- 
sels and  prizes  to  its  jurisdiction  in  a manner  which  would  be 
considered  as  an  indignity  under  ordinary  circumstances.  These 
conditions  the  belligerent  must  acquiesce  in.  It  must  not  com- 
plain when  a neutral  interns  its  troops  or  ships  of  war  and 
assumes  prize  jurisdiction  over  its  captures,  provided  such  acts 
are  required  by  international  law.  Acquiescence  in  such  actions 
or  its  reverse,  however,  are  acts  of  sovereignty  and  beyond  the 
control  of  municipal  law. 

(3)  The  belligerent’s  duties  of  prevention  bear  a relation 
to  the  neutral’s  duties  of  vindication.  Acts  which  the  neutral 
is  obliged  to  vindicate  if  committed,  the  belligerent  is  obliged 
to  prevent.  As  the  belligerent  in  exercising  rights  peculiar  to 
that  status  comes  in  contact  with  neutrals  through  its  army  and 
navy,  its  duties  of  prevention  require  it  to  exercise  control  over 
those  agencies  of  government.  It  is  through  this  control  that 
municipal  law  can  be  most  effective  in  enforcing  international 
obligations  of  belligerent  to  neutral  states.  The  municipal  means 
for  preventing  infractions  of  international  law  by  such  agencies 
of  government  will  therefore  concern  us. 

(4)  A belligerent  state  has  no  duty  of  vindication.  It  is 
itself  the  aggressive  party  in  its  relations  with  neutrals  and 
consequently  no  occasion  is  apt  to  arise  for  vindicating  its 
sovereign  rights  as  against  neutrals.  Resembling  the  neutral’s 
duty  of  vindication  is  the  belligerent’s  right  of  self-help,  by 
which  it  is  permitted  to  requisition  the  property  of  neutrals 
under  certain  circumstances,  to  draft  resident  aliens  into  its 
armies  and  subject  them  to  numerous  inconveniences  and  losses 
in  case  of  military  necessity,  to  visit  and  search  neutral  mer- 
chant vessels,  and  confiscate  them  in  well  defined  cases.  These 
acts  resemble  duties  of  vindication  in  that  they  are  acts  in- 
volving foreign  individuals  and  are  specifically  defined  by  inter- 
national law,  but  they  are  in  no  sense  duties.  No  one  but  the 
belligerent  is  benefited  by  their  performance  and  there  will  be 
no  violation  of  international  law  if  they  are  not  performed.  It 


145] 


BELLIGERENT  AND  NEUTRALS 


145 


is  a belligerent  right  which  is  here  in  question  and  the  accom- 
panying duty  is  that  which  is  owed  to  the  neutral  state  to 
abstain  from  exceeding  these  privileges  and  to  prevent  an  ille- 
gal exercise  of  them  by  its  land  and  naval  forces.  These  sub- 
jects are  considered  under  obligations  of  abstention  and 
prevention. 

(5)  Reparation  is  a belligerent  duty,  but,  as  noted  in  the 
case  of  a neutral,  it  is  not  a duty  peculiar  to  the  status  of 
belligerency.  It  is  a duty  universally  required  in  cases  of 
breaches  of  international  law.  Because  of  the  probability  of 
illegal  acts  in  the  heat  of  war,  the  question  of  reparation  is 
particularly  prominent  in  relation  to  belligerent  communities. 
As  examples  of  reparation  by  the  United  States  as  a belligerent 
may  be  mentioned  the  case  of  the  Florida,  in  which  the  United 
States  made  public  apology  for  a capture  in  the  territorial 
waters  of  Brazil,^  and  the  Trent  affair,  in  which  the  United 
States  restored  two  confederate  officers  taken  from  a British 
vessel  during  the  civil  war.^  As  the  principles  of  municipal 
law  relating  to  the  enforcement  of  this  duty  are  applicable  to 
reparation  in  all  cases,  further  discussion  has  been  given  under 
that  head,  in  the  general  division  of  the  law  of  peace. 

The  obligations  of  belligerents  to  neutrals  which  may  be 
enforced  by  municipal  law  will  therefore  be  considered  under 
the  two  heads,  (1)  obligations  of  abstention,  and  (2)  obligations 
of  prevention.  In  the  first  case,  international  law  itself  defines 
the  obligations  which  are  binding  upon  the  government.  Courts 
in  giving  effect  to  such  obligations  therefore  apply  international 
law.  In  the  second  case,  international  law  defines  the  conduct 
which  land  and  naval  forces  must  pursue  in  dealing  with  neu- 
trals, but  it  does  not  prescribe  the  measures  which  the  govern- 
ment must  take  for  enforcing  this  conduct.  The  means  which 
may  be  taken  for  preventing  infractions  of  international  law 
by  agencies  of  government,  are  left  to  the  discretion  of  the 
belligerent  state.  They  are  therefore  rules  supplementary  to 
international  law. 

^Case  of  the  Florida;  See  Moore’s  Digest,  2;367:  7;i09O. 

2Case  of  the  Trent,  see  Moore’s  Digest,  2;iooi:  7;626,  768. 


CHAPTER  XI.  OBLIGATIONS  OF  ABSTENTION. 


INmODUCTORY. 

A number  of  obligations  of  abstention  have  received 
specific  recognition  in  treaties  and  international  agreements  to 
which  the  United  States  is  a party,  and  are  therefore  according 
to  the  constitution  part  of  the  law  of  the  land.  In  the  Hague 
conventions  the  United  States  has  bound  itself  to  abstain  from 
exercising  war  rights  against  neutrals  until  it  has  notified  them 
of  the  outbreak  of  war,^  from  committing  hostilities  in  neutral 
territory  or  in  neutral  waters, ^ and  from  using  neutral  harbors 
or  territory  as  bases  of  naval  or  military  operations  or  for 
the  undue  asylum  of  war  vessels.^  In  special  treaties  as  well 
as  the  Hague  conventions  and  the  Declaration  of  London, 
which,  however,  is  unratified,  it  has  agreed  to  abstain  from 
injuring  neutral  individuals  in  person  or  property  except  in 
accordance  with  specified  rules.'^  Although  so  far  as  these  rules 
bind  the  state  they  are  sanctioned  by  considerations  of  policy 
rather  than  by  municipal  law,  yet  a belligerent  acts  through 
its  agencies  of  government,  largely  its  army  and  navy.  The 
duties  of  abstention  imposed  upon  it  may  be  to  a considerable 
extent  guaranteed  by  the  control  of  these  bodies  through  munici- 
pal law.  Looked  at  from  this  standpoint  the  duties  in  question 
become  duties  of  prevention.  What  a belligerent  community  is 
bound  to  abstain  from  doing,  it  is  bound  to  prevent  its  army 
and  navy  from  doing.  Such  duties  may  be  controlled  by  mu- 
nicipal law  and  will  be  considered  under  obligations  of 
prevention. 

Municipal  law  may  also  serve  to  make  the  obligations 
effective  through  the  action  of  constitutional  checks  between 

^Hagiie  Conventions,  1907;  iii,  art.  2,  Malloy,  p.  2266. 

-Ibid.,  1907,  V,  art.  i ; xiii,  art.  i,  Malloy,  pp.  2297,  2358. 

^Ihid.,  1907,  xiii.  ' 

^See  treaties  guaranteeing  “free  ships,  free  goods”,  infra  p.  164,  note 
106;  specifying  rules  of  blockade,  infra,  p.  149,  note  12;  freedom  of  ves- 
sels under  neutral  convoy,  infra,  p.  182,  note  49;  freedom  of  neutral  trade, 
infra,  p.  162,  note  95,  p.  182,  note  50;  specifications  for  the  exercise  of 
the  right  of  visit  and  search,  infra,  p.  182,  note  51 ; and  the  immunity  of 
resident  neutral  persons  from  military  service,  infra,  p.  174,  note  9. 

146 


147] 


BELLIGERENT  AND  NEUTRALS 


147 


departments  of  government.  Thus  the  courts  may  be  given 
authority  to  control  the  action  of  the  executive  in  seizing  neu- 
tral property.  This  situation  actually  exists  in  the  provisions 
of  municipal  law  requiring  the  adjudication  of  all  maritime 
seizures  by  prize  courts  before  their  confiscation.  The  judiciary 
here,  by  its  power  to  liberate  prizes,  acts  as  a check  upon  the 
abuse  of  authority  by  the  executive,  and  in  so  far  as  it  actually 
applies  rules  of  international  law  in  determining  prize  cases, 
enforces  the  belligerent  government’s  duty  to  abstain  from 
illegally  interfering  with  neutral  commerce. 

It  must  not,  however,  be  forgotten  that  the  prize  court, 
although  it  may  apply  international  law,  is  a court  of  the  bel- 
ligerent state  and  is  always  bound  by  municipal  law.  It  has 
no  authority  as  against  the  sovereign  power  in  its  state.  It  is 
only  over  one  branch  of  the  government  that  its  authority  exists. 

The  fact  that  the  belligerent  state  controls  the  prize  court, 
a condition  which  it  was  hoped  would  be  remedied  by  the  estab- 
lishment of  an  international  prize  court,  inevitably  puts  the 
neutral  claimant  at  a disadvantage  in  litigating,  and  were  it 
not  for  the  pressure  of  his  own  government  and  the  sanctions 
of  international  opinion,  he  would  not  receive  his  rights,  as  is 
indicated  by  the  distinct  difference  in  the  enforcement  of  neu- 
tral rights  when  most  of  the  great  powers  are  belligerent  and 
when  most  of  them  are  neutral. 

It  is  the  belligerent  state’s  duty  to  make  its  prize  court, 
in  the  words  of  Lord  Stowell,  “a  court  of  the  law  of  nations”.^ 
Yet  as  it  is  a court  of  the  belligerent  state  the  law  which  it 
enforces  is  by  definition  municipal  law.  Here  therefore  we 
have  a case  where  we  should  expect  to  find  international  law 
enforced  directly  as  a part  of  municipal  law.  We  should  expect 
to  find  the  rules  applied  by  prize  courts,  rules  of  both  inter- 
national law  and  municipal  law.  Both  English  and  American 
prize  courts  have  on  numerous  occasions  assured  us  that  this  is 
the  situation  which  actually  exists,®  yet  with  a few  cases  to  the 

®The  Recovery,  6 Rob.  348,  (1807).  See  T.  E.  Holland,  Studies  in 
International  Law,  p.  196. 

®Cases  asserting  that  prize  courts  apply  international  law,  English — 
The  Maria,  i Rob.  350,  (1799)  ; The  Recovery,  6 Rob.  348,  (1807)  ; The 
Minerva,  (1807)  ; The  Fox,  Edw.  Adm.  312,  (1811)  ; Le  Louis,  2 Dods. 
239,  (1817)  ; The  Annapolis,  30  L.  J.  Pr.  M.  and  Ad.  201.  See  also  Phil- 
limore,  International  Law,  3;  sec.  436.  For  discussion  of  these  cases  see 
Holland,  op.  cit.  196.  The  first  three  of  these  cases  are  authority  for 
the  view  that  prize  courts  must  apply  international  law  even  when  con- 


148  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [148 

contrary  we  have  also  been  informed  that  even  a prize  court  is 
bound  to  obey  a positive  mandate  of  its  government,  even  when 
in  conflict  with  the  law  of  nations.  Lord  Stowell  seized  the 
dilemma  by  the  horns.  ‘‘These  two  propositions,’’  he  said, 
“that  the  court  is  bound  to  administer  the  law  of  nations  and 
that  it  is  bound  to  enforce  the  king’s  orders  in  council  are  not 
at  all  inconsistent  with  each  other,”  because  one  could  not 
“without  extreme  indecency”  presume  that  a conflict  could 
exist. ^ In  the  United  States  Chief  Justice  Marshall  solved  the 
dilemma  by  resort  to  the  magic  power  of  legal  interpretation. 
“It  has  also  been  observed  that  an  act  of  congress  ought  never 
to  be  construed  to  violate  the  law  of  nations  if  any  other  possi- 
ble construction  remains,  and  consequently  can  never  be  con- 
strued to  violate  neutral  rights  or  to  affect  neutral  commerce 
further  than  is  warranted  by  the  law  of  nations  as  understood 
in  this  country.”® 

Neither  Sto well’s  confldence  in  the  impossibility  of  a con- 
flict nor  Marshall’s  reliance  upon  interpretation  can  obscure 
the  fact  that  conflicts  between  the  law  of  nations  and  of  the 
nation  have  occurred  and  have  been  so  direct  that  no  interpre- 
tation can  avail.®  In  such  circumstances  prize  courts,  the  same 
as  any  other  courts,  must  obey  municipal  law.^®  A failure  to 

trary  to  municipal  law.  United  States  cases — Talbot  vs.  Seamans,  I 
Cranch  i,  37,  (1801)  ; The  Nereide,  9 Cranch  388;  United  States  vs.  The 
Active,  Fed  Cas.  759;  Thirty  Hogsheads  of  Sugar  vs.  Boyle,  9 Cranch 
191 ; The  Scotia,  14  Wall.  170;  The  Paquete  Habana,  175  U.  S.  677. 

’’The  Fox,  Edw.  Adm.  312,  (1811). 

^Murray  vs.  The  Charming  Betsey,  2 Cranch  64,  118,  (1804). 

^Strangely  enough  the  very  case  in  which  Lord  Stowell  spoke  in- 
volved just  such  a conflict.  The  orders  in  council  upon  the  basis  of 
which  he  decreed  condemnation  of  the  neutral  vessel  before  him,  have 
been  universally  denounced  as  contrary  to  international  law.  See  article 
entitled  Disputes  with  America  in  Edinburgh  Rev.,  Feb.  1812,  I9;290, 
severely  censuring  Lord  Stowell’s  alteration  of  opinion  from  1798  to 
1811,  quoted  Moore’s  Digest,  7;648-65i.  Phillimore  in  his  international 
law,  3;  sec.  436,  implies  a similar  censure.  “If  he  (Lord  Stowell)  had 
not  so  considered  them  (i.e.  considered  the  orders  in  council  to  be  con- 
sistent with  international  law)  and  nevertheless  executed  them,  he  would 
have  incurred  the  same  guilt  and  deserved  the  same  reprehension  as  the 
judge  of  a municipal  court  who  executed  by  his  sentence  an  edict  of  the 
legislature  which  plainly  violated  the  law  written  by  the  Creator  upon 
the  conscience  of  his  creature.”  See  Holland,  op.  cit.  p.  198. 

lORegina  vs.  Keyn,  L.  R.  2 Ex.  D.  160;  The  Schooner  Exchange  vs. 
McFaddon,  7 Cranch  116;  Murray  vs.  The  Charming  Betsey,  2 Cranch 
64;  Mortenson  vs.  Peters,  14  Scot.  L.  T.  R.  227,  (1906)  Bentwich,  p.  12. 


149] 


BELLIGERENT  AND  NEUTRALS 


149 


do  so  would  be  a dereliction  of  duty  on  the  high  way  to  re- 
bellion. The  duty  therefore  rests  with  the  belligerent  state  to 
see  that  the  law  applied  by  its  prize  courts  is  international  law. 
We  will  examine  the  principles  of  law  thus  applied  in  the 
United  States,  in  cases  involving  the  rights  of  neutral  individ- 
uals. They  are  to  be  found  largely  in  prize  court  decisions, 
but  there  have  also  been  statutes,  treaties,  and  executive  orders 
stating  principles  of  this  branch  of  law  which  the  courts  are 
bound  to  observe. 

NEUTRAL  PROPERTY  AT  SEA. 

The  doctrine  is  maintained  in  the  United  States  that  title 
to  property  seized  at  sea  does  not  vest  until  after  decision  of 
the  court.^^  The  government,  therefore,  appears  before  the 
prize  court  as  an  applicant  for  condemnation  while  the  neutral 
individual  claims  restitution,  compensation,  damages,  or,  if  the 
vessel  is  a recapture,  restoration. 

The  bases  upon  which  condemnation  of  neutral  vessels  and 
property  are  justified  under  international  law  are  (1)  breach 
of  blockade,  (2)  carriage  of  contraband,  (3)  unneutral  service, 
(4)  presumption  of  enemy  character,  (5)  necessity  or  the  right 
of  angary.  The  belligerent  government  will  therefore  claim 
condemnation  on  one  of  these  grounds.  The  neutral  owner  will 
claim  restitution  if  the  belligerent  does  not  make  good  his  claim 
for  condemnation;  he  will  claim  compensation  if  in  such  a case 
the  vessel  has  been  sold,  destroyed  or  requisitioned;  he  will 
claim  damages  if  the  vessel  has  been  seized  without  probable 
cause  or  has  not  been  treated  with  proper  care  in  bringing  in; 
or  he  will  claim  restoration  if  he  is  an  original  owner  of  al 
recaptured  prize. 


GROUNDS  FOR  CONDEMNATION. 

(1)  Breach  of  Blockade.  In  a number  of  early  treaties 
the  principles  of  blockade  were  laid  down,  requiring  effective- 
ness and  sometimes  individual  notification  of  vessels.^^  The 

i^The  Adventure,  8 Cranch  221,  (1814)  ; The  Nassau,  4 Wall.  634; 
The  Nuestra  Senora  de  Regia,  108  U.  S.  92,  103,  (1882)  ; The  Tom,  29 
Ct.  Cl.  68,  97,  (1894)  ; Grundy,  Att.  Gen.,  3 op.  377,  (1838).  See  letter  of 
Sir  W.  Scott,  (Lord  Stowell)  and  Sir  J.  Nicholl,  to  Mr.  Jay,  1794,  stat- 
ing the  general  principles  of  prize  law  and  the  necessity  of  adjudication. 
Am.  St.  Pap.,  I ;494,  printed  in  Moore’s  Digest,  7 ;6o3-6o8. 

^^Effectiveness  has  been  required  in  nineteen  treaties  with  thirteen 
countries,  of  which  the  following  are  in  force : Bolivia,  1858,  art.  18, 


150  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [150 

Declaration  of  London  of  1909^^  lays  down  the  rules  of  blockade 
at  length.  This  treaty,  however,  has  not  received  general  rati- 
fication, although  the  United  States  senate  has  approved  it. 

The  United  States  has  instituted  blockades  during  the 
Mexican,  Civil  and  Spanish  wars.  On  these  occasions  the  law 
to  be  applied  in  dealing  with  neutrals  was  defined  in  proclama- 
tions declaring  the  blockades  and  instructions  to  naval  com- 
manders. The  prize  courts  in  applying  the  law  have  relied  on 
these  treaties,  proclamations  and  instructions  in  addition  to 
judicial  precedents  and  general  principles  of  international  law 
on  the  subject.  In  proclamations  and  instructions  the  princi- 
ples that  the  blockade  must  be  effective  and  declared  in  order 
to  be  binding  have  been  generally  specified.  Individual  warn- 
ing, however,  has  usually  not  been  required.  The  whole  prac- 
tice on  the  subject  stating  these  points  was  embodied  in  Stock- 
ton’s Naval  war  code  in  force  as  a general  order  of  the  Navy 
Department  from  1900  to  1904.^* 

Malloy,  p.  119;  Colombia,  1846,  art.  18,  p.  308;  Italy,  1871,  art.  13,  p.  973; 
Sweden,  1783-1798,  revived,  1816,  1827,  art.  10,  p.  1728. 

Individual  notification  of  vessels  ignorant  of  blockade  has  been 
required  in  twenty-one  treaties  with  seventeen  countries,  of  which  the 
following  are  in  force:  Bolivia,  1858,  art.  26,  p.  120;  Colombia,  1846, 
art.  20,  p.  308;  Italy,  1871,  art.  13,  p.  973.  Individual  warning  unless  the 
vessel  could  have  heard  of  the  blockade  has  been  required  in  six  treaties 
with  five  countries,  of  which  the  following  are  in  force : Sweden,  1827, 
art.  18,  p.  1754;  Prussia,  1828,  art.  13,  p.  1500;  Greece,  1837,  art.  16,  p.  853. 
See  also  Moore’s  Digest,  7;827. 

^^Declaration  of  London,  Charles,  Treaties,  1913,  pp.  269-272,  signed 
Feb.  26,  1909.  Ratification  advised  by  senate,  Apr.  24,  1912. 

^^Proclamations  of  Blockade:  Aug.  19,  1846,  by  Commodore  Stock- 
ton,  (Moore’s  Digest,  7;790,  Br.  and  For.  St.  Pap.  34;ii39)  ; Apr.  19,  27, 
1861,  by  President  Lincoln,  (12  stat.  1259)  ; Apr.  30,  1861,  by  Commander 
Prendergast,  (F.  H.  Upton,  Law  of  Nations  affecting  commerce  during 
war,  3rd  ed.,  N.  Y.  1863,  p.  487)  ; Apr.  22,  1898,  by  President  McKinley, 
(30  stat.  1769).  Naval  Instructions  relating  to  blockade.  May  14,  1846, 
(Moore’s  Digest,  7;828;  Br.  and  For.  St.  Pap.,  34;ii39)  I Dec.  24,  1846, 
(Moore’s  Digest,  7;79o)  ; May  8,  1861,  (Prize  cases,  2 Black  676)  ; Nov. 
6,  1861,  May  14,  1862,  (Upton,  op.  cit.,  p.  490)  ; Aug.  18,  1862,  (Official 
Records,  Union  and  Confederate  Navies,  Ser.  i,  i ;4i7,  Moore’s  Digest, 
7 ;70o)  ; June  20,  1898,  (Gen.  Ord.,  Navy  Dept.,  1898,  No.  492,  For.  Rel., 
1898,  p.  780,  Freeman . Snow,  International  Law,  2nd.  ed.,  Washington, 
1898,  p.  174)  ; June  27,  1900,  Stockton’s  Naval  War  Code,  (Gen.  Ord., 
Navy  Dept.,  1900,  No.  551,  revoked  Gen.  Ord.,  Navy  Dept,  Feb.  4,  I904> 
No.  150,  Printed,  Naval  War  College,  International  Law  Discussions, 
1903,  p.  112). 


151] 


BELLIGERENT  AND  NEUTRALS 


151 


The  courts  have  held  that  proof  of  three  questions  of  fact 
is  necessary  to  justify  condemnation,  (1)  existence  of  blockade, 
(2)  knowledge  on  the  part  of  the  violating  vessel,  (3)  actual 
or  constructive  violation^®  To  exist,  a blockade  must  be  ef- 
fective,^® but  a single  cruiser  may  be  sufficient  to  make  it  so;^^ 
it  need  not  be  declared,  de  facto  blockades  having  been  consid- 
ered legitimate,^®  although  they  are  denounced  by  the  Declara- 
tion of  London,^®  and  it  terminates  only  on  notification  or  occu- 
pation of  the  port.^® 

Knowledge  of  the  blockade  will  be  presumed-^  when  the 
vessel  left  port  after  notification  to  that  government,-^  or  had 
an  opportunity  to  learn  of  the  blockade  en  route.^^  An  indi- 
vidual warning  is  only  necessary  when  required  by  treaty^*  or 
where  the  vessel  sailed  before  notification  and  arrived  in  igno- 
rance of  the  blockade.^® 

In  defining  the  acts  constituting  a violation  of  blockade 
the  courts  in  the  civil  war  cases  seem  to  have  gone  beyond  the 
bounds  of  international  law.-®  Besides  attempting  to  enter^^ 

i^The  Nayade,  Fed.  Cas.  7,046;  The  Betsey,  i Rob.  29;  The  Nancy, 

1 Act.  59. 

i®The  Andromeda,  2 Wall.  48;  The  Baigorry,  2 Wall.  474. 

I’^The  Olinde  Rodriguez,  174  U.  S.  510. 

i®The  Adula,  176  U.  S.  361. 

^^Declaration  of  London,  1909,  art.  8. 

20The  Baigorry,  2 Wall.  474;  The  Josephine,  3 Wall.  83;  The  Cir- 
cassian, 2 Wall.  135;  The  Adula,  176  U.  S.  361. 

2iCondemnations  without  special  warning — The  Circassian,  2 Wall. 
135;  The  Hallie  Jackson,  Blatch.  248;  The  Empress,  Blatch.  175;  The 
Prize  Cases,  2 Black  635 ; The  Revenge,  2 Sprague  107 ; The  Hiawatha, 

2 Black  677;  The  Admiral,  3 Wall.  603;  The  Cornelius,  3 Wall.  214;  The 
Herald,  3 Wall.  768;  U.  S.  vs.  Halleck,  154  U.  S.  5371  The  Adula,  176 
U.  S.  361 ; The  Cheshire,  3 Wall.  231. 

22The  Circassian,  2 Wall.  135. 

2SU.  S.  vs.  Halleck,  154  U.  S.  537,  (1864). 

^^Fitzsimmons  vs.  Newport  Ins.  Co.,  4 Cranch  185,  (1818). 

25The  Nayade,  Fed.  Cas.  7046;  Yeaton  vs.  Frey,  5 Cranch  335,  (1809). 

2®This  is  partly  accounted  for  by  the  fact  that  the  court  considered 
the  civil  war  blockade  a municipal  rather  than  an  international  measure. 
For  an  interesting  statement  of  this  view,  written  while  the  war  was  in 
progress,  see  Upton,  op.  cit.,  pp.  298-307.  He  says,  “No  one  surely  whose 
intelligence  is  not  clouded  by  prejudice  or  obscured  by  selfish  considera- 
tions can  fail  to  perceive  the  broad  distinction  between  that  blockade 
which  is  proclaimed  by  a sovereign  nation  of  a portion  of  its  own  ports, 
for  the  purpose  of  quelling  a domestic  insurrection  and  compelling  the 


152 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[152 


or  leave^®  a blockaded  port  or  hovering  about  in  a suspicious 
manner,^®  the  court  applied  the  doctrine  of  continuous  voyage 
to  blockade,  condemning  cargoes  bound  for  blockaded  ports  by 
transhipment.^®  No  limits  to  the  zone  of  operations  were  re- 
quired. Vessels  with  an  “intent”  to  break  blockade  were  held 
liable  from  the  beginning  of  the  voyage  to  the  end  of  the  return 
voyage®^  and  even  on  a subsequent  voyage.^^  These  rules  were 

misguided  insurgents  to  ‘unthread  the  rude  eye  of  rebellion  and  welcome 
home  again  discarded  peace’,  and  that  which  is  ordered  and  enforced 
by  a sovereign  government  of  the  ports  of  its  foreign  enemy,  for  the 
purpose  of  paralyzing  his  power  and  compelling  him  to  repair  his  wrongs, 
and  submit  to  the  terms  of  equitable  pacification.”  p.  301.  This  view  is 
wholly  indefensible  by  modern  international  law.  The  law  of  blockade 
is  for  the  benefit  of  neutrals  and  it  makes  no  difference  to  them  whether 
the  war  is  rebellion  or  international  war — they  have  a right  to  the  same 
law  in  either  case. 

^"Fitzsimmons  vs.  Newport  Ins.  Co.,  4 Cranch  185,  200;  McCall  vs. 
Marine  Ins.  Co.,  8 Cranch  59;  The  Diana,  7 Wall.  354;  The  Nuestra 
Senora  de  Regia,  17  Wall.  29. 

2®The  Jeune  Nelly,  in  U.  S.  vs.  Guillam,  ii  Wall.  47;  The  Tropic 
Wind,  Fed.  Cas.  14,186,  16,541a;  The  Hiawatha,  Fed.  Cas.  6451,  af- 
firmed, 2 Black  677 ; The  Lynchburg,  Fed.  Cas.  8637a,  8638,  8639 ; The 
Crenshaw,  Fed.  Cas.  3384,  affirmed.  The  Prize  Cases,  2 Black  635.  Days 
of  grace  have  generally  been  allowed  in  which  vessels  in  port  may  leave. 
In  the  civil  war  cases  no  cargo  could  be  loaded  in  this  time.  The  Hia- 
watha, Fed.  Cas.  6451,  although  a limited  permission  to  do  so  was  given 
by  the  Navy  Instructions  of  May  8,  1861,  see  Prize  Cases,  2 Black,  676. 
According  to  the  instructions  of  1898  and  Stockton’s  Naval  War  Code 
cargo  may  be  loaded  in  this  time. 

29The  Cheshire,  3 Wall.  231;  The  Coosa,  i Newb.  Adm.  393;  The 
Hiawatha,  Blatch.  i.  Fed.  Cas.  6451;  The  Empress,  B'latch.  175;  The 
Josephine,  3 Wall.  83;  The  Dashing  Wave,  5 Wall.  170;  The  Teresita, 
5 Wall.  180;  The  Newfoundland,  176  U.  S.  97,  (1900)  ; The  Cornelius, 
3 Wall.  214. 

soThe  Circassian,  2 Wall.  135;  The  Springbok,  5 Wall,  i,  (1866); 
The  Bermuda,  3 Wall.  514;  The  Flying  Scud,  6 Wall.  263;  The  Thomp- 
son, 3 Wall.  155.  In  The  Peterhoff,  5 Wall  28  it  was  held  that  a tranship- 
ment by  land  could  not  be  regarded  as  a breach  of  blockade. 

3iThe  Galen,  37  Ct.  Cl.  89,  (1901);  The  Admiral,  3 Wall.  603;  The 
Circassian,  2 Wall.  135;  The  Baigorry,  2 Wall.  474;  The  Cornelius,  3 
Wall.  214;  The  Jenny,  5 Wall.  183;  The  Adela,  6 Wall.  266. 

32The  Mersey,  Fed.  Cas.  9,489,  reversed  Fed.  Cas.  9,490;  The  Major 
Barbour,  Fed.  Cas.  8,983;  The  Joseph  H.  Toone,  Fed.  Cas.  7>54i-  The 
principle  of  liability  on  a subsequent  voyage  was  not  relied  upon  ex- 
clusively in  these  cases.  For  discussion  see  Upton,  op.  cit.  p.  288.  Contra, 
see  The  Wren,  6 Wall.  155. 


153] 


BELLIGERENT  AND  NEUTRALS 


153 


quite  generally  denounced  by  European  publicists,  although  in 
a number  of  cases  which  were  subsequently  submitted  to  arbi- 
tration the  American  position  w^as  sustained. They  are  how- 
ever in  conflict  with  the  Declaration  of  London,  which  forbids 
the  application  of  ‘‘continuous  voyage”  to  blockade  and  re- 
quires that  captures  be  limited  to  the  zone  of  operation  of  the 
blockading  squadron.^^ 

Forfeiture  of  vessel  and  cargo  has  been  the  usual  penalty 
for  breach  of  blockade,  though  in  a few  cases,  where  the  owner 
of  part  of  the  cargo  was  ignorant  of  the  intent  of  the  vessel, 
the  cargo  was  restored,^®  while  in  other  cases,  where,  applying 
the  doctrine  of  continuous  voyage,  it  was  the  cargo  alone  which 
had  a blockaded  destination,  the  vessel  was  released.^® 

(2)  Carriage  of  Contraband.  Early  treaties  generally 
contained  lists  of  articles  which  could  alone  be  declared  contra- 
band,^’’ and  sometimes  free  lists  were  also  included.^®  One  of 

33The  case  of  The  Springbok,  5 Wall,  i,  (1866),  in  which  a cargo 
destined  for  transhipment  to  a blockade  runner  at  Nassau,  New  Provi- 
dence was  condemned,  aroused  the  severest  criticism.  It  was  denounced 
as  a retrogression  to  the  practice  of  paper  blockade  so  prominent  in  the 
Napoleonic  wars.  See  Moore’s  Digest  7 ‘,723-739,  in  which  opinions  of 
Lord  Russell,  Twiss,  Phillimore,  Bluntschli,  Fiore,  and  others  are  given. 
For  arbitral  awards  under  Art.  13,  treaty  of  Washington  of  1871,  Ibid. 
71725,  Moore  Int.  Arb.,  4 ’,3928-3935. 

^^Declaration  of  London,  1909,  art.  17,  19. 

35The  Springbok,  5 Wall,  i ; The  Flying  Scud,  6 Wall.  263. 

36The  Springbok,  5 Wall.  i. 

^^Contraband  lists  generally  consisting  of  four  classes  of  articles, 
(i)  arms  and  ammuntion,  (2)  military  clothes  and  accoutrements,  (3) 
horses  and  their  furniture,  (4)  other  instruments  especially  for  use  in  war 
have  been  included  in  twenty-six  treaties,  with  twenty  countries  of  which 
the  following  are  in  force:  Bolivia,  1858,  art.  17,  Malloy,  p.  119;  Italy, 
1871,  art.  15,  p.  974;  Prussia,  1799-1810,  revived  1828,  art.  13,  p.  1491; 
Sweden,  1783-1798,  revived  1816,  1827,  art.  9,  p.  1728.  Most  of  these 
treaties  specify  that  no  other  articles  shall  be  subject  to  confiscation  as 
contraband,  although  this  is  not  true  of  those  with  Italy  and  Prussia. 
In  addition  to  these  classes  of  articles,  the  treaty  with  Great  Britain  of 
1794-1807,  (art.  18,  p.  601)  included  navy  stores,  and  stated  that  “pro- 
visions and  other  articles  not  generally  contraband  may  be  regarded  as 
such”  and  may  be  seized  upon  indemnifying  the  owner  for  their  value 
with  an  allowance  for  profit,  and  damages  caused  by  the  detention. 
Treaties  with  Salvador,  (1850-1870,  art.  19,  p.  1543;  1870-1893,  art.  19, 
P-  1557)  add  “provisions  that  are  imported  into  a besieged  or  blockaded 
place”  to  the  contraband  list,  though  it  is  difficult  to  see  why  such  goods 


154 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[154 


the  most  remarkable  provisions  is  that  in  the  Prussian  treaties 
of  1785  and  1799,  the  latter  of  which  was  renewed  in  1828  and 
is  still  in  force, in  which  contraband  is  declared  abolished  as 
between  the  two  countries  with  the  proviso  that  goods  formerly 
deemed  contraband  might  be  detained  and  requisitioned  on 
payment  of  full  compensation  to  the  neutral  owner.  The  Decla- 
ration of  London^^^  contains  a codification  of  the  law  of  contra- 
band, embracing  lists  of  absolute  contraband,  conditional  con- 
traband and  free  goods.  These  lists,  however,  have  not  been 
adhered  to  in  subsequent  wars. 

Naval  instructions  beginning  with  those  of  the  continental 
congress  of  1776^^  have  been  issued  at  the  beginning  of  wars 
specifying  contraband  lists  and  enjoining  naval  officers  to  re- 
spect neutral  rights.  Few  cases  involving  contraband  were 
decided  in  the  Revolutionary  war,  the  War  of  1812,  the  Mexican 
or  the  Spanish  wars.  The  Civil  war  cases  alone  are  of  impor- 
tance. In  these  the  courts  appear  to  have  been  guided  largely 

would  not  be  liable  under  the  law  of  blockade,  and  a treaty  with  Two 
Sicilies  of  1855-1861,  (art.  3,  p.  1816)  includes  “troops  whether  infantry 
or  cavalry”  under  the  name  of  contraband.  The  treaties  with  Prussia, 
Italy  and  Venezuela,  (1836-1851,  art.  18,  p.  1836;  1860-1870,  art.  13,  p. 
1850)  exclude  horses  from  the  contraband  list. 

3®The  treaties  with  France,  1778-1798,  art.  24,  p.  496;  Spain,  1795- 
1902,  art.  16,  p.  1646;  Sweden,  1783-1798,  revived  1816,  1826,  art.  8,  p. 
1728,  among  other  things  put  textiles,  gold,  iron,  copper,  coal,  grain, 
provisions,  navy  stores,  and  lumber  on  the  free  list.  That  with  Nether- 
lands, 1782-1795,  art.  24,  p.  1240,  puts  navy  stores  and  machines  for 
manufacturing  war  material  on  the  free  list. 

39Treaties  with  Prussia,  1785-1796,  art.  13,  p.  1481;  1799-1810,  re- 
vived 1828,  art.  13,  p.  1491.  See  U.  S.  vs.  Diekelman,  92  U.  S.  526  for 
interpretation  of  this  provision.  It  has  also  been  made  the  basis  of 
compensation  in  the  recent  (1915)  case  of  the  United  States  vessel  Wil- 
liam P.  Frye.  , 

^^Declaration  of  London,  1909,  Charles,  Treaties,  1913,  p.  272. 

*^Naval  instructions  April  3,  1776,  (Journal  of  the  Continental  Con- 
gress, W.  C.  Ford,  ed.,  4;  253,  Journal  of  Congress,  i;  244,  G.  W.  Allen, 
A Naval  History  of  the  American  Revolution,  N.  Y.,  1913,  2 vols.,  2)695)  1 
Apr.  7,  1781,  (Jour.  Cong,,  Ford,  ed.,  19;  361)  ; 1812,  (2  Wheat.  App., 
80-81;  Moore’s  Digest,  7;5i6),  May  14,  1846,  (Br.  and  For.  St.  Pap. 
34;ii39),  May  14,  1862,  (Upton,  op.  cit.  p.  490);  Aug.  18,  1862,  (Official 
Rec.  Union  and  Conf.  Navies,  Ser.  i,  i;4i7);  June  20,  1898,  (Navy 
Dept.,  Gen.  Ord.,  1898,  No.  492,  For.  Rel,,  1898,  p.  780)  ; June  27,  1900, 
Stockton’s  Naval  War  Code,  (Naval  War  College,  International  Law 
Discussions,  1903,  p.  112). 


155] 


BELLIGERENT  AND  NEUTRALS 


155 


by  British  precedents,  mostly  those  of  Lord  Stowell  in  the 
Napoleonic  era.^^ 

All  cases  have  held  that  the  concurrence  of  (1)  a hostile 
character  in  the  goods  themselves  and  (2)  a hostile  destination 
is  necessary  for  condemnation.  The  courts  have  drawn  the 
distinction  between  absolute  and  conditional  contraband,  hold- 
ing that  the  former  may  be  condemned  if  destined  to  the  enemy 
country,^^  while  the  latter  is  only  liable  if  bound  for  the  use 
of  the  enemy  army.^^  The  doctrine  of  continuous  voyage  has 
been  applied  to  both  absolute^®  and  conditional  contraband.^® 
It  was  this  question  which  occupied  most  attention  in  the  Civil 
war  cases.  British  vessels  were  in  the  habit  of  landing  cargoes 
in  the  West  Indies  or  in  Mexico  near  the  Texan  frontier  for 
transhipment  in  blockade  runners  or  by  land  to  the  Confederate 
states.^’'  Such  vessels,  if  captured  on  the  first  limb  of  the  voy- 
age, that  is  while  sailing  between  two  neutral  ports,  were  usually 
condemned.^®  The  grounds  of  condemnation  were  not  always 
clear.  In  most  of  these  cases,  carriage  of  contraband  and  breach 
of  blockade  were  both  suggested. 

The  penalty  imposed  for  carriage  of  contraband  was  ordi- 
narily condemnation  of  the  contraband  cargo  alone,^®  though 
free  goods  of  the  owner  of  contraband  were  generally  declared 
“infected’’  and  condemned.®®  Evidence  of  bad  faith  such  as 

^“On  force  of  British  prize  court  precedents  in  United  States  courts 
see  Marshall  in  Thirty  Hogsheads  of  Sugar  vs.  Boyle,  g Cranch  igi, 
198,  (1815),  quoted  Moore’s  Digest,  71598,  “The  United  States  having 
at  one  time  formed  a component  part  of  the  British  Empire  their  prize 
law  was  our  prize  law,  so  far  as  it  was  adapted  to  our  circumstances, 
and  was  not  varied  by  the  power  which  was  capable  of  changing  it.” 

«The  Peterhoff,  5 Wall.  28,  58,  (1866). 

^^The  Commercen,  i Wheat.  382^  (1816). 

^^The  Dolphin,  Fed.  Cas.  868,  (1863)  ; The  Bermuda,  3 Wall.  514, 
(1865). 

4«The  Pearl,  5 Wall.  574,  (1866);  The  Peterhoff,  5 Wall.  28,  (1866). 

^■^For  complete  statement  of  the  conditions  of  contraband  trade  dur- 
ing the  Civil  war  see  the  Stephen  Hart,  Blatch.  387,  (1863),  Scott,  852, 
affirmed  in  the  Hart,  3 Wall.  559.  See  also  Moore’s  Digest,  7:698-739. 

^^Instructions  of  the  Secretary  of  the  Navy,  Aug.  18,  1862,  author- 
ized seizure  of  vessels  carrying  contraband  for  the  insurgents  “to  their 
ports  directly  or  indirectly  by  transhipment”.  See  Moore’s  Digest,  7 ;7oo. 

*®The  Peterhoff,  5 Wall.  28,  (1866)  ; The  Commercen,  i Wheat.  382, 
(1816). 

soThe  Lucy,  37  Ct.  Cl.  97,  (1901)  ; The  Bird,  38  Ct.  Cl.  228,  (1903)  ; 
The  Peterhoff,  5 Wall.  28. 


156 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[156 


destruction  of  papers, giving  of  false  destination^^  being 

involved  in  blockade  running®^  were  held  to  condemn  the  vessel 
also.  Ordinarily  liability  was  held  to  cease  with  the  deposit  of 
contraband  goods,  but  this  was  not  true,  the  vessel  being  con- 
demned on  her  return  voyage  if  a false  destination  were  given.®^ 

(3)  Unneutral  Service.  The  transportation  of  troops  and 
the  carriage  of  dispatches,  which  are  the  commonest  offenses 
included  under  the  offense  of  unneutral  service,  are  sometimes 
spoken  of  as  analogues  of  contraband.  In  reality  the  offense 
is  distinctly  different  from  that  of  carrying  contraband.  The 
idea  of  destination  inseparable  from  contraband  trade  is  not 
necessarily  included.  It  is  the  service,  ordinarily  coupled  with 
an  unneutral  intent,  that  creates  the  offense.®®  The  similarity 
to  contraband  trade,  however,  is  evident,  and  in  a treaty  of 
1855  with  Two  Sicilies®®  naval  and  military  troops  were  in- 
cluded in  the  contraband  lists.  A large  number  of  treaties  in 
stipulating  that  free  ships  shall  make  free  goods  add  that  enemy 
persons  on  neutral  vessels  shall  ‘‘not  be  taken  out  of  that  ship 
unless  they  are  officers  or  soldiers  and  in  the  actual  service  of 
the  enemies’’,®^  thus  indicating  that  persons  of  the  latter  class 
are  liable  and  strongly  implying  that  they  may  be  taken  out  of 
a vessel  overtaken  at  sea,  a position  which  was  protested  by 
Great  Britain  in  the  Trent  case.®®  The  Declaration  of  London 

5iThe  Bermuda,  3 Wall.  514. 

52The  Lucy,  37  Ct.  Cl.  97,  (1901);  The  Joseph,  8 Cranch  451;  Car- 
rington vs.  Merchants  Ins.  Co.,  8 Pet.  494. 

^^The  Dolphin,  Fed.  Cas.  868;  The  Pearl,  5 Wall.  574;  The  Hart,  3 
Wall.  559;  The  Gertrude,  Fed.  Cas.  5,369,  5,370* 

®^The  Lucy,  37  Ct.  Cl.  97,  (1901);  The  Joseph,  8 Cranch  451;  Car- 
rington vs.  Merchants  Ins.  Co.,  8 Pet.  494.  In  the  Betsey  and.  Polly, 
38  Ct.  Cl.  30,  (1902),  it  was  held  that  giving  a false  destination  does 
not  condemn  on  return  voyage  when  there  is  no  contraband  on  board 
and  the  real  destination  is  unblockaded. 

^^On  distinction  of  contraband  trade  and  unneutral  service  see  Mar- 
quardson  on  the  Trent  case,  quoted  Moore’s  Digest,  71775. 

®®Treaty  with  Two  Sicilies,  1855-1861,  art.  3,  Malloy,  p.  1816. 

®^Seizure  of  military  persons  on  neutral  vessels  has  been  provided 
in  twenty-seven  treaties  with  nineteen  countries,  of  which  the  following 
are  in  force:  Bolivia,  1858,  art.  16,  Malloy,  p.  119;  Colombia,  1846,  art. 
15,  P*  306;  Italy,  1871,  art.  16,  p.  974;  Prussia,  1785-1796,  revived  1828, 
art.  12,  p.  1481 ; Sweden,  1783-1798,  revived  1816,  1827,  art.  7,  p.  1727. 

5®See  Moore’s  Digest,  7;775. 


157] 


BELLIGERENT  AND  NEUTRALS 


157 


distinguishes  two  classes  of  unneutral  service.^®  Lesser  offenses 
subject  the  vessels  to  the  treatment  of  neutral  contraband  car- 
riers, while  graver  offenses  amounting  to  a direct  participation 
in  naval  movements  subject  them  to  the  treatment  of  enemy 
merchant  vessels. 

In  the  Chesapeake  affair  of  1807®®  and  in  other  cases  pre- 
ceding and  causing  the  War  of  1812  the  United  States  objected 
to  the  taking  of  military  persons  from  its  vessels  when  neutral. 
In  these  cases  the  illegal  impressment  of  neutral  persons  was 
also  involved.  The  Trent  affair®^  during  the  Civil  war,  which 
involved  the  seizure  of  Confederate  emissaries  from  a British 
vessel,  was  settled  diplomatically  and  unfavorably  to  the  right 
of  such  seizure.  Here  the  vessel  was  not  brought  in  for  prize 
adjudication,  seizure  being  made  on  the  sea,  but  this  practice 
seems  to  have  been  contemplated  in  a large  number  of  the 
United  States  treaties  of  that  time,®^  although  not  by  any  treat- 
ies with  England.  It  also  seems  to  be  countenanced  by  the 
Declaration  of  London.®^  The  seizure  in  the  Trent  case,  how- 
ever, was  complicated  by  the  fact  that  the  persons  seized  were 
diplomatic  emissaries  accredited  to  a neutral  government, 
rather  than  military  persons,  and  consequently  should  have 
enjoyed  diplomatic  immunities. 

No  cases  involving  unneutral  service  appear  to  have  come 
up  in  United  States  prize  courts.®^  English  precedents,  how- 
ever, which  are  usually  of  weight  in  United  States  prize  courts,®’ 
have  held  that  vessels  may  be  condemned  not  only  on  the  basis 
of  employment  by  the  enemy  government  but  also  for  know- 
ingly or  fraudulently  giving  aid  through  carriage  of  troops, 
military  persons  or  dispatches.®®  Where  knowledge  or  fraud  is 

^^Declaration  of  London,  arts.  45,  46. 

«®See  Moore’s  Digest,  2)991,  1001. 

«iSee  Moore’s  Digest,  7)768-779. 

®2Supra,  p,  156,  note  57. 

•^Declaration  of  London,  art,  47. 

•^Seizure  of  vessels  engaged  in  unneutral  service  was  authorized  by 
the  Naval  instructions  of  1898,  art.  16,  For.  Rel.,  1898,  p.  781,  and  Stock- 
ton’s Naval  War  Code,  1900-1904,  arts.  16,  20. 

®^In  regard  to  English  prize  court  precedents  in  United  States 
courts  see  Thirty  Hogsheads  of  Sugar  vs.  Boyle,  9 Cranch  191,  198, 
(1815),  Moore’s  Digest,  7)599,  Supra,  p.  155,  note  42. 

••Carriage  of  troops  and  military  persons — The  Caroline,  4 Rob. 
256,  (1802)  ) The  Friendship,  6 Rob.  320,  (1807)  ) The  Orozemba,  6 Rob. 
430,  (1807)  ) Carriage  of  Dispatches — The  Atalanta,  6 Rob.  440,  (1808)  ; 
The  Constantia,  The  Susan,  The  Hope,  see  Moore’s  Digest,  71759-762. 


158  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [158 

not  proved  the  vessel  has  usually  been  restored  but  on  condition 
that  it  pay  the  captors’  expenses,®^  the  ground  being  taken  that 
the  belligerent  has  a right  of  seizing,  bringing  in  and  investigat- 
ing neutral  vessels  suspected  of  unneutral  service,  even  where 
condemnation  is  not  warranted. 

(4)  Presumption  of  Enemy  Character.  The  general  rule 
applies  that  enemy  property  at  sea  is  liable  to  confiscation.  The 
belligerent  will  therefore  claim  condemnation  of  vessels  and 
goods  apparently  neutral  if  their  real  ownership  or  the  actual 
right  to  their  use  is  enemy.  The  enemy  or  neutral  character  of 
property  may  be  determined  in  a number  of  different  ways,  as 
by  the  nationality  of  the  owner,  the  domicile  of  the  owner,  the 
location  of  the  goods,  or  the  fiag  of  the  vessel.  Where  the 
character  of  the  goods  depends  upon  the  character  of  the  owner, 
the  question  of  who  is  the  owner  when  goods  are  in  transit 
arises. 

By  the  Declaration  of  London,®®  the  neutral  or  enemy  char- 
acter of  a vessel  is  determined  by  the  ‘ ‘ fiag  which  she  is  entitled 
to  fiy”  and  of  goods  on  board  an  enemy  vessel  by  the  “neutral 
or  enemy  character  of  the  owner,  ’ ’ the  title  ordinarily  remaining 
with  the  seller  until  the  destination  is  reached. 

These  principles  have  been  generally  adhered  to  by  United 
States  courts,  but  the  character  of  goods  or  of  their  owner  has 
been  interpreted  in  accordance  with  the  Anglo-American  princi- 
ple of  territoriality  as  opposed  to  nationality.  Thus  goods  owned 
by  an  inhabitant  of  enemy  territory,  irrespective  of  his  sympa- 
thy®® or  nationality,^®  have  been  considered  enemy  goods.  Goods 
employed  in  the  enemy  service^®  or  the  produce  of  enemy  soiF® 

®'^The  Caroline,  6 Rob.  461,  (1808)  ; The  Madison,  Edw.  Adm.  224, 
(1810);  The  Rapid,  Edw.  Adm.  228,  (1810);  See  Moore’s  Digest,  7)762- 

763. 

®®Declaration  of  London,  1909,  art.  58-60. 

®^Mrs.  Alexander’s  Cotton,  2 Wall.  404,  419;  The  Benito  Estenger, 
176  U.  S.  568.  See  Moore’s  Digest,  7 ;429-430. 

^®Chester  vs.  The  Experiment,  Fed.  Court  of  Appeals,  2 Dali.  41, 
(1787);  U.  S.  vs.  Gillies,  Pet.  C.  C.  159;  Murray  vs.  The  Charming 
Betsey,  2 Cranch  64,  (1804)  ; The  Venus,  8 Cranch  253,  (1814)  ; The 
Frances,  8 Cranch  335,  (1814)  ; The  Mary  and  Susan,  i Wheat.  46.  See 
Moore’s  Digest,  71424-429. 

■^iDarby  vs.  The  Erstern,  Fed.  Court  of  Appeals,  2 Dali.  34,  (1782)  ; 
The  Hart,  3 Wall.  559;  The  Baigorry,  2 Wall.  474.  See  Moore’s  Digest, 
7;4I0-4I5. 

’'^Thirty  Hogsheads  of  Sugar  vs.  Boyle,  9 Cranch  191,  (1815)  ; The 
Prize  Cases,  2 Black  635,  (1862).  See  Moore’s  Digest,  7;4o6-4io. 


159] 


BELLIGERENT  AND  NEUTRALS 


159 


are  also  regarded  as  enemy  goods  whatever  the  character  of  the 
owner. 

The  courts  have  held  that  title  to  property  in  transit  is 
with  the  vendor.  Thus  goods  enroute  from  an  enemy  seller  to  a 
neutral  buyer,  even  when  sold,  are  condemned  as  enemy  prop- 
erty^^  and  goods  in  transit  from  a neutral  seller  to  a belligerent 
buyer  are  released  as  neutral  property It  has  been  hinted, 
however,  that  if  the  contract  of  sale  specified  that  the  transfer 
should  take  place  on  delivery  to  the  master  of  the  vessel,  and 
consideration  had  been  given,  a neutral  buyer  might  make  good 
his  claim.^® 

In  addition  to  these  general  principles,  international  law  rec- 
ognizes certain  circumstances  which  give  a constructive  enemy 
character  to  goods  which  are  really  neutral,  in  which  case  con- 
demnation is  permitted.  This  constructive  enemy  character  has 
at  different  times  and  by  different  countries  been  asserted  on 
the  following  grounds:  (a)  transfers  to  neutral  flag,  (b)  ac- 
ceptance of  enemy  convoy,  protection  or  license,  (c)  resistance  to 
visit  and  search  or  fraud,  (d)  engaging  in  closed  trade,  (e)  car- 
riage by  neutral  vessels  of  enemy  goods,  (f)  shipping  of  neutral 
goods  on  enemy  vessels. 

(a)  By  the  Declaration  of  London,^®  transfers  of  enemy 
vessels  to  a neutral  flag  are  in  general  valid  if  made  before  the 
outbreak  of  hostilities,  void  if  made  after.  Certain  provisions 
and  presumptions,  however,  are  added.  A more  liberal  rule  has 
heretofore  been  applied  by  United  States  courts.  Thus  bona  fide 
transfers  of  vessels  and  property,  whether  made  before  or  after 
the  outbreak  of  the  war,  have  been  held  valid.’^’’  This  has  also 
been  the  British  rule.’’^  The  sale,  however,  is  presumed  not  bona 

^^The  Ship  Frances  and  Cargo,  i Gall.  445,  affirmed  8 Cranch  350, 
(1813)  ; The  Frances,  9 Cranch  183,  (1815)  ; The  San  Jose  Indiano,  2 
Gall.  268,  affirmed  i Wheat.  308,  (1814). 

^^The  Ship  Ann  Green,  i Gall.  274,  Scott,  620,  (1812). 

■^^The  San  Jose  Indiano,  2 Gall.  268,  affirmed  i Wheat.  208.  See 
Moore’s  Digest,  7;404-4o6. 

^^Declaration  of  London,  1909,  art.  55-56. 

77Cushing,  Att.  Gen.,  6 op.  638,  (1854);  7 op.  538,  (1855).  See 
Moore’s  Digest,  7;7i5-724. 

^®The  Baltica,  ii  Moore  P.  C.  141,  (1857)  ; The  Ariel,  ii  Moore 
P.  C.  1 19,  (1857).  France  and  Russia  have  generally  applied  the  princi- 
ple that  sales  made  after  the  outbreak  of  war  are  void.  See  French 
Regulations,  July  26,  1778,  noted  Moore’s  Digest,  7;4i7;  Russian  Prize 
Regulations,  March  27,  1895,  quoted  Moore’s  Digest,  7 ;424-  Great  Brit- 


160  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [160 

fide  if  made  in  transit^^  or  under  conditions  such  as  the  reten- 
tion of  enemy  control  or  the  reservation  of  a right  to  repur- 
chase.®® The  sale  of  enemy  warships  to  a neutral  has  been  re- 
garded as  void  even  if  bona  fide.®^. 

(b)  While  the  sailing  under  neutral  convoy  exempts  mer- 
chant vessels  not  only  from  capture  but  from  visit  and  search, 
the  acceptance  of  enemy  convoy,  of  enemy  license,  or  the  ship- 
ping of  goods  in  an  enemy  armed  vessel  has  sometimes  been  held 
in  itself  to  render  the  neutral  goods  and  vessels  liable  to  condem- 
nation as  of  constructive  enemy  character.®^  In  the  leading 
United  States  case,  however.  The  Nereide,®®  the  majority  of  the 
court,  speaking  through  Chief  Justice  Marshall,  held  that  neu- 
tral goods  laden  on  an  armed  enemy  ship  were  exempt  from  cap- 
ture, and  this  decision  was  followed  in  the  Atalanta®^  a few  years 
later.  Justice  Story  dissented  in  The  Nereide,  holding  that  a 
distinction  existed  between  the  loading  of  neutral  goods  in  un- 
armed and  armed  belligerent  vessels,  and  the  latter  case,  similar 
to  belligerent  convoy,  gave  the  neutral  goods  enemy  character. 
Story’s  opinion  was  followed  by  the  court  of  claims  in  a number 
of  French  spoliation  claim  cases.*®  The  condemnation  of  neu- 

ain  adopted  this  rule  as  a measure  of  retaliation  by  order  in  council, 
Nov.  II,  1807,  Br.  and  For.  St.  Pap.,  8 1468;  Am.  St.  Pap.,  For.  Rel., 
3 ;270.  By  Naval  Instructions  of  1870,  France  somewhat  relaxed  her 
practice,  and  admitted  that  the  presumption  of  illegality  in  sales  made 
during  war  might  be  overthrown  by  sufficient  evidence.  See  A.  P.  Rivier, 
Principes  du  Droit  des  Gens,  2 vols.,  Paris,  1896,  2:414. 

^^The  Ship  Frances  and  Cargo,  i Gall.  443,  affirmed  8 Cranch  354, 
(1813);  The  Sally,  3 Wall.  451,  460,  (1865). 

*oThe  Island  Belle,  Fed.  Gas.  168;  The  Benito  Estenger,  176  U.  S. 
568,  (1899),  Scott,  621. 

®iThe  Georgia,  7 Wall.  32,  (1868)  ; The  Sally,  3 Wall,  451,  460, 
(1865).  See  also  the  Texan  Star,  Moore,  Int.  Arb.,  3:2360  and  an  edi- 
torial comment  by  J.  B.  Scott,  Am.  Jour.  Int.  Law,  Jan.  1915. 

®“See  Danish  Instructions,  Mch.  28,  1810,  declaring  all  neutral  ves- 
sels good  prize  “which  made  use  of  British  Convoy”.  Eighteen  United 
States  vessels  were  seized  under  this  clause  and  a diplomatic  controversy 
ensued  which  was  settled  by  a convention  of  March  28,  1830,  Malloy,  p. 
377,  in  which  Denmark  made  compensation.  See  Moore’s  Digest,  7:496- 
499. 

83The  Nereide,  9 Cranch  388,  (1815). 

84The  Atalanta,  3 Wheat.  409,  (1818). 

85  The  Nancy,  27  Ct.  Cl.  99,  (1827)  : The  Brig  Sea  Nymph,  36  Ct.  Cl. 
369,  (1901).  It  was  held  in  The  Galen,  37  Ct.  Cl.  89,  (1901),  that  though 


161]  BELLIGERENT  AND  NEUTRALS  161 

tral  and  national  vessels  sailing  under  an  enemy  license  or  pass- 
port has  been  decreed  in  a number  of  cases.®®. 

(c)  The  Declaration  of  London®^  provides  that  ‘‘forcible 
resistance  to  the  legitimate  exercise  of  the  right  of  stoppage, 
search  and  capture”  involves  in  all  cases  the  condemnation  of 
the  vessel  and  of  goods  belonging  to  the  master  or  owner.  Simi- 
lar provision  was  made  in  the  United  States  naval  instructions 
of  1898  and  in  Stockton’s  Naval  war  code.®®  The  courts  have  in- 
variably held  the  captors  exempt  from  liability  for  making  seiz- 
ures when  any  of  these  circumstances  exist,®®  and  in  a number 
of  cases  have  condemned  the  vessel.®®  In  most  of  the  early  trea- 
ties of  the  United  States,  neutral  vessels  were  required  to  carry 
passports  or  sea  letters  and  other  papers.  In  some  of  them  it 
was  also  provided  that  a vessel  not  carrying  such  papers  could 
be  detained  and  might  be  ‘ ‘ declared  legal  prize  ” by  a competent 
court  unless  the  absence  of  the  papers  could  be  satisfactorily  ex- 
plained.®^ The  courts,  however,  have  held  that  in  such  cases  neu- 
tral vessels  could  not  be  condemned  even  in  the  absence  of  pass- 
ports, if  other  evidence  indicated  a bona  fide  neutral  character.®- 

(d)  Belligerents  have  at  times  condemned  neutral  vessels 
for  engaging  in  a branch  of  enemy  trade  closed  to  them  in  time 
of  peace,®®  for  trading  between  enemy  ports  or  even  for  trading 

acceptance  of  belligerent  convoy  rendered  the  vessel  liable,  the  liability 
did  not  inhere  after  voluntary  seperation  from  it. 

®®The  Julia,  8 Cranch  i8i ; The  Aurora,  8 Cranch  203;  The  Hiram,  8 
Cranch  444;  The  Hiram,  i Wheat.  440;  The  Ariadne,  2 Wheat.  143;  Pat- 
ton vs.  Nicholson,  3 Wheat.  204;  The  Langdon  Cheves,  4 Wheat.  103.  See 
Moore’s  Digest,  7;395-398. 

®’<’The  Declaration  of  London,  1909,  art.  63. 

®®Naval  Instructions,  June  20,  1898.  For.  Rel.,  1898,  p.  780;  Stock- 
ton’s Naval  War  Code,  art.  33. 

®9Del  Col  vs.  Arnold,  3 Dali.  333;  The  Marianna  Flora,  ii  Wheat,  i, 
(1826). 

9®The  Bermuda,  3 Wall.  514. 

*iNon-carriage  of  passports  was  declared  to  subject  the  vessel  to  con- 
demnation in  sixteen  treaties  with  eleven  countries,  of  which  those  with 
Bolivia  (1858,  art.  22,  Malloy,  p.  121)  and  Colombia  (1846,  art.  22,  p.  309) 
are  still  in  force.  In  six  treaties  with  five  countries,  of  which  that  with 
Prussia  (1799-1810,  revived  1828,  art.  14,  p.  1491)  is  still  in  force,  the  car- 
riage of  passports  was  required  but  failure  to  do  so  was  specifically  de- 
clared not  to  create  a presumption  against  the  vessel. 

9-The  Pizarro,  2 Wheat.  227;  The  Venus,  27  Ct.  Cl.  116.  (1892). 

93See  British  Rule  of  1756,  Moore’s  Digest,  7 aho  similar  rule  of 
I793»  Order  in  Council,  Nov.  6,  1793,  Lawrence,  op,  cit.  p.  717.  Historical 
account  of  the  growth  of  these  rules,  i Wheat.  530,  App.  ii. 


162 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[162 


with  the  enemy  at  In  a large  number  of  its  treaties®^  the 

United  States  has  agreed  as  a belligerent  to  recognize  the  right  of 
citizens  of  the  other  contracting  party  to  free  navigation  between 
neutral  and  enemy  ports  and  between  two  enemy  ports ; and  in 
none  of  its  wars  has  it  condemned  neutral  vessels,  even  when  not 
protected  by  treaty,  on  the  basis  of  engaging  in  closed  trade.®* 
The  condemnation  of  vessels  of  American  citizens  trading  with 
the  enemy  is  based  on  an  entirely  different  principle  and  is  really 
not  governed  by  international  law  at  all.®’’  In  insurance  cases®® 

9^See  Napoleon’s  Berlin,  (Nov.  21,  1806)  and  Milan,  (Nov.  23,  1807, 
Dec.  17,  1807)  decrees  and  British  Orders  in  Council,  (Jan.  7,  1807,  Nov. 
II,  1807,  Mch.  15,  1915).  Texts  of  all  but  the  last,  Br.  and  For.  St.  Pap. 
8;  401-513;  DeMarten’s  Nouveau  Recueil,  i ;433-549 ; Am.  St.  Pap.,  For. 
Rel.  3;262. 

9^The  freedom  of  neutral  trade  has  been  guaranteed  in  twenty-five 
treaties  with  eighteen  countries,  of  which  the  following  are  in  force : Bo- 
livia, 1858,  art.  15,  18,  Malloy,  p.  119;  Colombia,  1846,  art.  15,  18,  p.  206; 
Italy,  1871,  art.  16,  p.  974;  Prussia,  1785-1796,  revived,  1828,  art.  12,  p.  1481 ; 
Sweden,  1783-1798,  revived,  1816,  1827,  art.  7,  p.  1727. 

9®Dicta  in  some  civil  war  cases  seems  to  indicate  that  such  trade 
creates  an  enemy  character.  See  The  Hart,  3 Wall.  560. 

^^The  condemnation  of  property  of  citizens  engaged  in  trade  with 
the  enemy  should  be  regarded  as  a matter  of  domestic  policy,  rather  than 
of  international  law.  Such  trade  has  always  been  branded  as  illegal  and 
creating  a constructive  enemy  character  by  the  United  States,  see  The 
Rapid,  8 Cranch  155,  (1814)  ; Rush,  Att.  Gen.,  i op.  175,  (1814)  ; The  Al- 
exander, 8 Cranch  169,  (1814)  ; The  Sally,  8 Cranch  382,  (1814)  ; The  St. 
Lawrence,  8 Cranch  434,  (1814)  ; The  Thomas  Gibbons,  8 Cranch  421, 
(1814)  ; The  Rugen,  I Wheat.  63,  (1816)  ; Jecker  vs.  Montgomery,  13 
How.  498,  18  How.  no.  See  President  Lincoln’s  proclamation  Aug.  16, 
1861,  prohibiting  all  trade  with  the  southern  states,  (12  stat.  1262).  See 
Moore’s  Digest,  7;39i-395.  The  United  States  courts  have  applied  the 
doctrine  of  continuous  voyage  to  such  trade,  The  Joseph,  8 Cranch  451, 
454,  (1814);  The  Grotius,  8 Cranch  456,  (1814).  See  Moore’s  Digest,  7; 
388-391.  In  the  Mary,  9 Cranch,  126,  148,  (1815),  the  doctrine  of  continu- 
ous voyage  acted  to  the  advantage  of  a vessel  which  left  England  for  the 
United  States  after  the  repeal  of  the  British  Orders  in  Council  and  be- 
fore the  news  of  the  outbreak  of  the  war  of  1812,  and  consequently  would 
have  been  exempt  from  capture  under  the  president’s  instructions  of  Aug. 
28,  1812,  had  she  come  home  directly.  Although  she  left  an  Irish  port  in 
which  she  had  been  forced  to  take  shelter  long  after  she  had  knowledge 
of  the  war,  the  court  held  her  voyage  was  continuous  from  the  innocent 
start  in  England  so  she  could  not  be  condemned  for  trading  with  the 
enemy.  See  Moore’s  Digest,  7)393. 

®®Vasse  vs.  Ball,  2 Dali.  270,  (Pa.),  See  Moore’s  Digest,  71387. 


163] 


BELLIGERENT  AND  NEUTRALS 


163 


the  United  States  courts  have  denied  the  legitimacy  of  condem- 
nations of  vessels  for  engaging  in  closed  trade,  or  the  Rule  of 
1756,^^  as  it  was  called.  The  greater  extensions  of  the  claims  to 
limit  neutral  trade  put  forth  in  the  Napoleonic  wars  with  in- 
creasing severity  against  neutrals  were  scarcely  admitted  even 
by  the  belligerent  nations  as  warranted  by  international  law,  but 
were  justified  if  at  all  as  measures  of  retaliation  against  enemies. 
To  these  restrictions  by  means  of  paper  blockades  the  United 
States  was  an  incessant  protestant.  The  charge  that  its  own 
practice  during  the  civil  war  was  of  similar  character  has  al- 
ready been  mentioned  in  considering  blockade.^®*’.  However,  the 
usual  practice  of  prize  courts  in  the  United  States  is  to  refuse  to 
condemn  neutral  vessels  for  engaging  in  any  trade,  unless  prin- 
ciples of  blockade  or  contraband  can  be  invoked,  a practice  which 
naval  forces  were  required  to  observe  by  Stockton’s  Naval  War 
Code.^°^ 

(e)  When  no  question  of  blockade,  contraband  or  unneu- 
tral service  is  involved,  the  general  principle  has  been  recognized 
from  early  times  that  neutral  vessels  carrying  neutral  cargo  are 
exempt  from  seizure  and  condemnation.  When  enemy  goods  are 
loaded  in  a neutral  vessel,  three  principles  have  at  different  times 
been  acted  on:  (1)  both  goods  and  neutral  vessel  are  liable,  (2) 
the  enemy  goods  alone  are  liable,  (3)  neither  goods  nor  vessel 
may  be  condemned.  The  first  principle  by  which  a constructive 
enemy  character  is  given  to  the  neutral  vessel  carrying  goods,  is 
known  as  the  doctrine  of  infection.  It  was  sometimes  applied 
in  the  early  eighteenth  century,  but  in  recent  times  it  has  been 
universally  repudiated  and  has  never  been  applied  in  the  United 
States.  The  second  principle  was  the  one  generally  applied  by 
the  United  States  courts,  except  where  treaties  directed  other- 
wise, up  to  the  time  of  the  Spanish  war.  In  spite  of  the  renun- 
ciation of  the  principle  by  the  Declaration  of  Paris  in  1856,  and 

9®The  Rule  of  1756  was  inaugurated  by  Great  Britain  during  a time 
when  practically  all  colonial  trade  was  closed  in  time  of  peace,  and  it  was 
to  this  practice  that  the  doctrine  of  continuous  voyage  was  first  applied. 
In  the  wars  following  the  French  Revolution,  United  States  merchants 
entered  the  French  West  Indian  trade  which  was  opened  to  them,  and  in 
order  to  escape  the  operation  of  the  rule  of  1756,  now  known  as  the  rule 
of  1793,  transshipped  at  a port  of  the  United  States  before  going  to  Eu- 
rope. Lord  Stowell  held  the  voyage  continuous  and  condemned  vessels 
bound  for  Europe  whose  cargo  had  originally  come  from  the  French 
West  Indies.  See  Moore’s  Digest,  7;383,  i Wheat.  530,  App.  ii. 

looSupra,  p.  153. 

’^oiStockton’s  Naval  War  Code,  1900-1904.  art.  19. 


164 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[164 


the  consistent  stand  of  the  political  department  of  the  govern- 
ment in  favor  of  “free  ships,  free  goods”  since  the  foundation 
of  the  republic,  the  courts  continued  to  announce  the  condemna- 
tion of  enemy  property  on  neutral  vessels  as  law  during  the  civil 
war,^®^  although  all  condemnations  were  supported  by  resort  to 
principles  of  contraband  or  blockade  as  well.  With  this  doctrine 
neutral  vessels  carrying  enemy  goods  were  liable  to  the  incon- 
venience of  seizure  and  detention  until  the  enemy  goods  could  be 
removed.  As  a partial  compensation  the  neutral  was  usually  al- 
lowed freight  on  the  enemy  goods  condemned.^®^  The  third  prin- 
ciple is  known  as  the  doctrine  of  “free  ships,  free  goods.”  Al- 
though it  acts  immediately  for  the  benefit  of  enemy  private  per- 
sons, its  adoption  has  been  brought  about  by  the  pressure  of  neu- 
tral powers,  and  it  is  rather  as  a concession  to  the  neutral ’s  inter- 
est in  not  having  his  vessels  detained,  than  for  the  benefit  of  bel- 
ligerent powers,  that  the  doctrine  has  at  length  become  incorpo- 
rated into  international  law.^®^  In  naval  instructions  of  the  Rev- 
olutionary War  the  principle  was  provided  for,  and  the  courts 
at  that  time  applied  it  in  accord  with  these  instructions.^®'^  In 
early  treaties  beginning  with  the  first  treaty  concluded  by  the 
United  States,  that  with  France  in  1778,  “free  ships,  free  goods” 
found  a place, sometimes  though  not  always  coupled  with  a 
stipulation  for  “enemy  ships,  enemy  goods. The  political 

^o^Early  cases.  The  Julia,  8 Cranch  i8i ; The  Nereide,  g Cranch  388; 
The  Antonia  Johanna,  i Wheat.  159,  (1816)  ; The  Ariadne,  2 Wheat.  143; 
The  Caledonian,  4 Wheat.  100.  For  Judicial  opinion  during  the  Civil 
War,  see  the  Hiawatha,  Fed.  Cas.,  6451 ; The  Hart,  3 Wall.  559,  affirming 
the  Stephen  Hart,  Blatch,  387. 

lo^The  Antonia  Johanna,  i Wheat.  159,  Hoover  vs.  U.  S.,  22  Ct.  Cl. 
408,  460,  (1887)  ; The  Ann  Green,  i Gall.  274. 

io*The  doctrine  was  first  authoritatively  advocated  by  the  Armed  Neu- 
trality of  1780,  sponsored  by  Russia,  see  Moore’s  Digest,  7;558-56i. 

losNaval  Instructions,  Apr.  3,  1776;  Apr.  7,  1781,  Jour.  Cong.,  Ford, 
ed.,  4)253,  i9;36i,  Allen,  op.  cit..,  2)695.  See  also.  Darby  vs.  the  Brig 
Erstern,  2 Dali.  34,  ordinance  Dec.  4,  1781,  Jour.  Cong.,  7)185,  Ford,  ed., 
21)1158. 

io6“Pree  Ships,  Free  Goods”  has  been  provided  for  in  thirty  treaties 
with  twenty-seven  countries,  of  which  the  following  are  now  in  force; 
Bolivia,  1858,  art.  16,  Malloy,  p.  1195 ) Colombia,  1846,  art.  15,  p.  306) 
Italy,  1871,  art.  16,  p.  974)  Peru,  1856,  art.  i,  p.  1402)  Prussia,  1785-1796, 
revived  1828,  art.  12,  p.  1481 ) Sweden,  1783-1798,  revived  1816,  1827,  art.  7, 
p.  1727)  Russia,  1854,  art.  i,  p.  1520. 

io70f  the  above  treaties  in  force  those  with  Sweden  and  Colombia 
contain  the  stipulation  of  “enemy  ships,  enemy  goods.”  See  infra,  note  iii. 


165] 


BELLIGERENT  AND  NEUTRALS 


165 


department  of  the  government  has  supported  this  principle  as  a 
rule  of  international  law  since  the  establishment  of  the  govern- 
ment/®® but  it  was  not  applied  by  the  courts  after  the  Revolu- 
tionary War  until  the  War  of  1898.  The  principle  was  adopted 
by  most  of  the  powers  through  the  Declaration  of  Paris  of  1856, 
but  this  was  never  acceded  to  by  the  United  States  and  during 
the  civil  war  the  courts  continued  to  voice  the  earlier  princi- 
ple.^®® In  proclamations  and  naval  instructions  of  the  Spanish 
war  the  principle  was  adopted,  and  it  was  also  incorporated  into 
Stockton’s  Naval  War  Code.^^®  It  is  now  undoubtedly  law  in 
the  United  States  as  well  as  a principle  of  international  law. 

(f ) Neutral  goods  on  enemy  vessels  have  also  been  subjected 
to  varying  treatment.  The  three  possible  principles  are  (1)  both 
enemy  vessel  and  neutral  goods  are  liable,  (2)  the  vessel  alone  is 
liable,  (3)  neither  the  vessel  nor  the  goods  may  be  condemned. 
The  first  principle,  known  as  “enemy  ships,  enemy  goods,”  was 
frequently  applied  in  the  early  eighteenth  century  along  with 
the  doctrine  of  infection  at  a time  when  neutrals  were  so  few 
and  lacking  in  force  that  their  voice  commanded  no  attention, 
but  in  recent  times  it  has  not  been  applied  as  a rule  of  interna- 
tional law,  and  was  repudiated  by  the  Declaration  of  Paris  of 
1856.  It  has  however  been  frequently  stipulated  in  treaties,  as 
an  offset  to  the  concession  of  “free  ships,  free  goods.”  The 
United  States  has  embodied  this  principle  in  a number  of  trea- 
ties,^^^  two  of  which  are  still  in  force  but  probably  obsolete  in 

Moore’s  Digest,  7 ;434-453,  especially  letter  of  instructions  by 
Secretary  of  State  Cass  to  United  States  Minister  in  France,  June  27, 
1859,  which  says,  “with  respect  to  the  protection  of  the  vessel  and  the 
cargo  by  the  flag  which  waves  over  them,  the  United  States  look  upon 
the  principle  as  established  and  they  maintain  that  belligerent  property  on 
board  neutral  ships  is  not  liable  to  capture,”  p.  450.  In  spite  of  this  the 
courts  affirmed  the  opposite  view  a few  years  later  during  the  civil  war. 
See  The  Hiawatha  Fed.  Cas.,  6451,  The  Hart,  3 Wall.  559. 

io®The  Hiawatha,  Fed.  Cas.,  6451,  The  Hart,  3 Wall.  559. 

^i^Telegraphic  Instructions,  Apr.  22,  1898,  (Moore’s  Digest,  7 ’,453)  ; 
Proclamation,  Apr.  26,  1898,  (30  stat.  1770)  ; Stockton’s  Naval  War  Code, 
1900-1904,  art.  19. 

m“Enemy  ships,  enemy  goods”  has  been  provided  for  in  eighteen 
treaties  with  thirteen  powers,  always  in  combination  with  the  stipulation 
of  “free  ships,  free  goods,”  and  generally  with  the  proviso  that  goods  of 
the  neutral  laden  on  an  enemy  vessel  in  a specified  time,  varying  from 
two  to  eight  months  after  the  outbreak  of  the  war,  shall  be  exempt.  Only 
two  of  these  treaties,  those  with  Peru,  1870-1886,  (art.  19,  p.  1420)  and 
Salvador,  1870-1893,  (art.  16,  p.  1556)  were  concluded  after  the  Declara- 


166  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [166 

this  respect.  The  second  principle,  that  which  condemns  the 
enemy  vessel  and  saves  the  neutral  goods,  coupled  with  the  prin- 
ciple that  enemy  goods  in  neutral  vessels  are  liable,  was  laid  down 
in  the  Consolato  del  Mare,^^-  a body  of  sea  law  of  the  thirteenth 
century,  and  has  formed  the  recognized  rule  of  international  law 
since  that  time.  The  principle  was  adopted  in  the  Declaration 
of  Paris  in  combination  with  the  principle  of  “free  ships,  free 
goods.”  Although  the  United  States  did  not  accede  to  this  dec- 
laration, in  six  individual  treaties^^^  of  about  that  time  it  was 
agreed  to  recognize  the  two  principles  as  “permanent  and  invio- 
lable ’ ’ rules  of  international  law,  applicable  to  all  powers  who  so 
conceived  them.  The  courts  have  consistently  applied  this  rule 
in  cases  not  covered  by  treaty  provisions  with  a different  re- 
quirement, but  with  the  presumption  that  goods  in  an  enemy 
vessel  are  enemy.^^^  The  final  principle,  that  which  contemplates 
the  exemption  of  both  the  enemy  vessel  and  its  neutral  cargo, 
when  coupled  with  the  existing  principle  of  “free  ships,  free 
goods,  ’ ’ would  logically  lead  to  the  total  immunity  of  enemy  pri- 
vate property  from  seizure  during  war.  This  is  a principle  his- 
torically advocated  by  the  United  States,  but  is  not  at  present  a 

tion  of  Paris,  In  these  two  cases  existing  treaties  were  merely  revised  and 
the  clause  was  probably  retained  through  lack  of  attention  and  an  auto- 
matic copying  of  old  forms ; in  fact  in  the  Peruvian  treaty  of  1856,  the 
principles  of  the  Declaration  of  Paris  had  been  adhered  to  as  permanent 
and  inviolable.  At  the  revision  of  the  Peruvian  treaty  of  1870  in  1887 
the  clause  was  omitted.  Two  of  these  treaties,  those  with  Sweden,  (1783- 
1798,  revived  1827,  art.  14,  p.  1730)  ; and  Colombia,  then  called  New  Gra- 
nada, (1846,  art.  16,  p.  307)  are  still  in  force.  A convention  of  1909,  with 
Colombia,  (art.  7,  Charles,  treaties,  p.  237),  provided  that  negotiations  for 
the  revision  of  the  latter  with  a view  to  removing  obsolete  provisions 
should  be  entered  into. 

ii^Text  of  the  Prize  Chapters  of  the  Consolato  del  Mare  may  be 
found  in  Wheaton,  History  of  the  Law  of  Nations,  N.  Y.,  1845,  p.  63; 
Travers  Twiss,  The  Black  Book  of  the  Admiralty,  Rolls  Series,  No.  55, 
3;539.  In  his  introduction  to  this  work,  Twiss  gives  a very  full  account 
of  the  origin  and  force  of  the  Consolato. 

ii^Treaties  with  Bolivia,  1858,  art.  16,  Malloy,  p.  119;  Dominican  Re- 
public, 1867-1898,  art.  15,  p.  408;  Hayti,  1864-1905,  art.  19,  p.  926;  Peru, 
1856,  art.  I,  p.  1402;  Russia,  1854,  art.  i,  p.  1520;  Two  Sicilies,  1855-1861, 
art.  I,  p.  1813.  The  two  principles  of  the  Declaration  of  Paris  were  in- 
corporated in  a treaty  with  Tripoli  of  1805,  art,  5,  p.  1789. 

^i^The  London  Packet,  i Mason,  14,  The  Amy  Warwick,  2 Sprague, 
150;  The  Carlos  F.  Roses,  177  U.  S.  655,  (1899),  Scott,  637;  The  Lynch- 
burg, Blatch.  57.  See  also  Declaration  of  London,  1909,  art,  59. 


167] 


BELLIGERENT  AND  NEUTRALS 


167 


rule  of  international  law.  In  its  treaties  with  Prussia  of  1785 
and  with  Italy  of  1871/^^  the  latter  of  which  is  still  in  force,  the 
principle  was  adopted  as  between  the  signatories.  As  the  United 
States  has  never  been  at  war  with  a country  with  which  such  a 
treaty  existed,  the  principle  has  never  been  applied  by  the  courts. 
In  the  two  Hague  conferences,  the  United  States  delegation  urged 
the  adoption  of  this  principle.  In  the  first  conference  a ‘‘voeu” 
was  formally  expressed  that  the  question  be  discussed  at  a suc- 
ceeding conference.^^®  At  the  second  conference  in  1907,  the 
matter  was  discussed  at  length  and  a vote  was  taken^^^  in  which 
twenty-one  powers  including  Germany,  Austria,  Italy  and  the 
United  States  voted  for ; eleven  including  Great  Britain,  France, 
Kussia,  and  Japan  voted  against  it,  while  one  abstained  from 
voting. 

(5)  Necessity.  The  final  rule  under  which  condemnation 
of  neutral  property  has  been  claimed  is  by  the  rights  of  pre- 
emption and  angary.^^®  It  is  asserted  that  in  case  of  necessity 
the  belligerent  may  seize  and  use  any  neutral  property  provided 
it  is  paid  for.  In  a number  of  treaties  preemption  rather  than 
confiscation  has  been  provided  as  the  treatment  of  contraband,^^^ 
but  the  present  case  relates  to  the  seizure  of  goods  not  contra- 
band or  condemnable  under  any  excuse  other  than  necessity.  Sev- 
eral treaties,  among  them  the  Spanish  treaty  of  1902,^^°  provide 
that  vessels  and  property  of  subjects  of  the  contracting  parties 
w’hen  neutral  shall  be  exempt  from  seizure  except  in  case  of  ne- 

ii^Treaties  with  Prussia,  1785-1796,  art.  23,  p.  1484;  Italy,  1871,  art. 
12,  p.  973.  In  a treaty  with  Bolivia  of  1858  the  contracting  parties  agreed 
to  give  asylum  to  privateers  until  they  should  relinquish  that  practice,  “in 
consideration  of  the  general  relinquishment  of  the  right  to  capture  private 
property  on  the  high  seas,”  (art.  9,  p.  117). 

^i^See  Moore’s  Digest,  7;47i. 

i^^Deuxieme  Conference  international  de  la  paix,  Actes  et  Docu- 
ments, 3 vols.,  The  Hague,  1907,  3 ;832. 

ii®The  term  “angary”  applied  to  forced  service  of  neutral  vessels  and 
is  now  obsolete.  See  G.  G.  Wilson,  Handbook  of  International  Law,  St. 
Paul,  1910,  p.  416.  Preemption  refers  to  the  forced  sale  of  property.  See 
Wilson,  op.  cit,  p.  437. 

ii^Treaties  with  Great  Britain  1794-1807,  art.  18,  p.  601;  Prussia  1785- 
1796,  art.  13,  p.  1481 ; 1799-1810,  revived,  1828,  art.  13,  p.  1491.  For  inter- 
pretation of  the  Prussian  treaty  see  U.  S.  vs.  Diekelman,  92  U.  S.  526.  It 
has  also  been  made  the  basis  of  compensation  in  the  recent  case  (1915) 
of  the  United  States  vessel  William  P.  Frye. 

i20Treaty  with  Spain,  1902,  art.  5,  Malloy,  p.  1703. 


168  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [168 

cessity,  and  then  compensation  shall  be  given,  to  be  arranged  be- 
forehand if  possible. 

Eecognition  of  the  right  of  requisitioning  neutral  property 
in  case  of  necessity  is  given  in  the  Declaration  of  London,  the 
Hague  Conventions,  Lieber’s  instructions  of  1863,  the  naval  in- 
structions of  1898  and  Stockton’s  naval  war  code  of  1900  to 
1904.^^^  In  all  of  these  cases,  however,  full  payment  for  such 
requisitions  is  stated  as  an  obligation. 

CLAIMS  OF  THE  NEUTRAL  OWNER. 

Having  considered  the  claims  which  the  captor  state  will 
offer  as  a basis  for  the  condemnation  of  neutral  prizes,  the  claims 
of  the  neutral  owner  involved  may  be  considered.  These  claims 
may  be  grouped  under  the  heads,  (1)  restitution,  (2)  compensa- 
tion, (3)  damages,  (4)  restoration. 

(1)  Kestitution  of  the  actual  property  has  been  recognized 
by  the  United  States  courts  as  the  proper  course  in  all  cases 
where  the  government  does  not  make  good  its  claim  to  condem- 
nation. It  is  the  logical  corollary  of  the  principle  that  title  to 
property  does  not  change  until  after  the  decision  rendered  by 
the  prize  court.  If  the  court  does  not  support  the  government’s 
claim  for  condemnation,  the  original  owner’s  title  has  never 
been  lost  and  he  can  claim  the  goods. 

(2)  Eestitution,  however,  may  be  impossible.  The  cargo 
may  have  been  requisitioned  or  destroyed.  If  enemy  goods  on 
board  are  condemned,  a practice  now  repudiated,  the  shipper  can 
not  get  freight  from  the  consignee.  In  such  cases  the  courts  have 
held  compensation  to  be  due  the  innocent  neutral,^^^  but  this  is 
subject  to  important  limitations.  The  seizure  may  have  been 
justifiable  because  of  suspicious  circumstances,  although  there 
is  no  condemnation.  Here  losses  caused  by  delay  must  be  borne 
by  the  owner.  Part  of  the  cargo  may  have  been  destroyed 
through  accident  or  the  lawful  exercise  of  belligerent  rights  by 

i2iDeclaration  of  London,  art  29,  49-54;  Hague  Conventions,  1907, 
iv,  annex,  art.  52,  v,  art.  19;  Instructions  for  the  government  of  the  Ar- 
mies of  the  United  States  in  the  Field,  by  Francis  Lieber,  Apr.  24,  1863, 
Gen.  Ord.,  War  Dept.,  No.  100,  printed,  Naval  War  College,  International 
Law  Discussions,  1903,  art.  14,  38;  Naval  Instructions,  June  20,  1898,  For. 
Rel.,  1898,  p.  780;  Stockton’s  Naval  War  Code,  art.  3,  6,  14,  50. 

i22Deciaration  of  London,  1909,  art.  64;  Hague  Conventions,  1907, 
V,  art.  19;  Stockton’s  Naval  War  Code,  art.  6,  14.  The  Nuestra  Senora 
de  Regia,  108,  U.  S.  92,  (1882). 


169] 


BELLIGERENT  AND  NEUTRALS 


169 


the  captor.  Here  again  the  neutral  suffers  the  loss  of  freight  and 
goods.^^^ 

(3)  However,  restitution  and  compensation  for  actual  goods 
seized  may  by  no  means  cover  the  loss  of  the  neutral.  Even  if  the 
ship  and  cargo  are  intact  the  delay  may  have  caused  serious  loss 
through  fall  of  markets  or  breach  of  contract.  The  right  of  the 
neutral  to  damages  in  such  cases  has  been  recognized  in  the 
United  States  courts.^-^  Damages  cannot  lie  against  the  govern- 
ment for  more  than  the  value  of  the  prize  under  adjudication,^^® 
but  they  may  be  had  from  a naval  officer  if  the  seizure  was  made 
without  probable  cause.^^®  The  burden  of  proof,  however,  is  al- 
ways upon  the  neutral  claimant.^^’’  Except  in  a very  clear  case 
recovery  is  impossible. 

(4)  The  claim  for  restoration  differs  from  those  just  con- 
sidered in  that  it  is  not  brought  by  the  party  from  whom  the  ves- 
sel was  immediately  seized,  but  from  a former  owner.  It  arises 
in  cases  of  recapture  from  the  enemy  of  a vessel  or  goods  origi- 
nally belonging  to  a neutral  or  national  individual.^^®  The  valid- 
ity of  the  claim  depends  on  whether  or  not  title  had  passed  to  the 
enemy  captor  before  recapture.  If  it  had,  the  vessel  is  enemy 
property,  if  it  had  not  it  is  neutral  or  national  property,  and 
must  be  restored.  The  different  views  which  have  been  held  on 

i23The  Antonia  Johanna,  i Wheat.  159,  (1816).  > 

i24Xhe  Siren,  7 Wall.  152,  (1868)  ; The  Nuestra  Senora  de  Regia,  108, 
U.  S.  92;  Slocum  vs.  Mayberry,  2 Wheat,  i;  The  Appollon,  9 Wheat.  377; 
The  Lively,  i Gall.  315. 

i25ln  The  Siren,  7 Wall.  152,  (1868),  a neutral  vessel  was  run  into 
and  sunk  by  a captured  prize.  The  court  held  the  owner  of  the  sunken 
vessel  could  recover  to  the  value  of  the  prize  if  subject  to  condemnation, 
but  no  more. 

i26Del  Col  vs.  Arnold,  3 Dali.  333,  (1796)  ; Little  vs.  Barreme,  2 
Cranch  170,  (1804)  ; The  Eleanor,  7 Wheat.  345;  Jecker  vs.  Montgomery, 
13  How.  498;  The  Thompson,  3 Wall.  155;  The  Dashing  Wave,  5 Wall. 
170;  The  Anna  Maria,  2 Wheat.  327;  The  Amiable  Nancy,  3 Wheat.  546. 
See  Moore’s  Digest,  7;583-597. 

i27The  Marianna  Flora,  ii  Wheat,  i,  (1826)  ; Murray  vs.  The  Charm- 
ing Betsey,  2 Cranch  64;  The  Buena  Ventura  vs.  U.  S.  175  U.  S.  384;  The 
Thompson,  3 Wall.  185 ; The  Dashing  Wave,  5 Wall.  170.  See  Moore’s 
Digest,  7;598- 

i28The  right  of  restoration  has  been  derived  from  the  Roman  Jus 
Postliminii,  although  that  applied  to  the  rule  whereby  slaves  and  property 
on  land  returned  to  their  former  status  after  reconquest.  See  Hershey, 
op.  cit.,  p.  439. 


170  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [170 

this  subject  assert  that  title  to  captured  property  vests,  (1)  imme- 
diately on  seizure,  (2)  after  twenty-four  hours  quiet  possession, 
(3)  after  bringing  ‘‘infra  praesidia”,  (4)  after  condemnation 
by  a prize  court.  All  of  these  rules  have  been  at  different  times 
acted  on  by  courts  and  embodied  in  executive  orders,^-^  but  the 
one  at  present  established  appears  to  be  the  last.  The  original 
owner’s  claim  is  good  until  the  vessel  has  been  condemned  in  an 
enemy  prize  court.^^®  A statute  of  1800,^^^  continued  by  subse- 
quent acts,  required  restoration  to  United  States  citizens  where 
the  property  had  not  been  condemned  by  competent  authority, 
and  to  neutral  subjects  on  a basis  of  reciprocity.^^-  The  neutral 
can  make  good  his  claim  only  where  the  law  of  his  country  would 
allow  restoration  to  a citizen  of  the  United  States.  In  any  case 
a deduction  of  military  salvage  for  the  recaptors  is  allowed  be- 
fore restoration. 

The  measures  taken  to  enforce  the  duty  of  the  United  States 
as  a belligerent  to  abstain  from  illegally  interfering  with  neu- 
tral commerce  are  found  in  the  rules  laid  down  for  the  courts  in 
treaties,  statutes,  and  executive  orders  and  instructions,  but  pri- 

i29Yesting  of  title  immediately  on  seizure  was  held  to  be  the  rule  of 
international  law  during  the  Revolutionary  War,  (see  the  Resolution, 
Fed.  Ct.  of  App.  1781,  2 Dali,  i,  4;  McDonough  vs.  Dannery  and  the 
Ship  Mary  Ford,  3 Dali.  188,  1796)  thus  the  right  of  restoration  was  de- 
nied altogether  except  by  way  of  comity  or  express  ordinance.  An  ordi- 
nance of  congress,  (Nov.  25,  1775,  Journ.  Cong.,  Ford,  ed.,  31373)  granted 
restoration  of  recaptures  made  before  twenty-four  hours  possession,  but 
the  court  held  this  could  not  apply  where  the  enemy  had  sold  the  prize  to 
a neutral,  and  in  any  case  it  applied  only  to  United  States  citizens  (The 
Resolution,  Fed.  Court,  of  Appeals,  1781,  2 Dali,  i,  4).  The  twenty-four 
hour  rule  was  also  recognized  in  several  early  treaties  as  to  neutrals, 
where  the  captor  was  a privateer,  although  restoration  was  permitted  even 
after  twenty-four  hours  possession  and  before  condemnation  when  the 
captor  was  a public  vessel.  (See  treaties  with  Netherlands,  1782-1795; 
Malloy,  p.  1243;  Sweden,  1783-1798,  revived  1827,  p.  1730;  Prussia,  1785- 
1796;  1799-1810,  arts.  17,  21,  pp.  1482,  1492). 

i^oTalbot  vs.  Seamans,  i Cranch  i,  (1801)  ; Murray  vs.  The  Charm- 
ing Betsey,  2 Cranch  64,  121,  (1804)  ; The  Star,  3 Wheat.  78,  86,  (1818). 
Restoration  even  after  condemnation  has  been  allowed  where  the  con- 
demnation by  the  enemy  prize  court  was  clearly  illegal.  See  The  Resolu- 
tion, 2 Dali.  I,  (1781). 

^31  Act.  Mch.  3,  1800,  2 stat.  16,  June  26,  1812,  2 stat.  760;  June  27, 
1813,  2 stat.  793;  June  30,  1864,  13  stat.  306,  314;  rev.  stat.  sec.  4652. 

i^22The  Schooner  Adeline,  9 Cranch  244,  see  Moore’s  Digest,  7;52i- 


533. 


171] 


BELLIGERENT  AND  NEUTRALS 


171 


marily  in  the  principles  of  law  to  which  prize  courts  have  habit- 
ually adhered.  These  principles  to  which  American  prize  courts 
have  professed  obedience  are  (1)  the  principle  that  title  does 
not  pass  until  decree  of  a prize  court,  (2)  the  law  applied  by  prize 
courts  is  the  law  of  nations,  (3)  statutes  and  orders  should  be 
interpreted  if  possible  so  as  not  to  conflict  with  international  law, 
(4)  treaties,  including  law  making  international  conventions,  are 
to  be  applied  as  part  of  the  law  of  the  land.  So  long  as  these 
principles  are  adhered  to  by  discreet  courts  the  national  duties 
of  this  character  will  undoubtedly  be  fulfilled.  Yet  on  account 
of  the  inevitable  tendency  of  even  the  most  conscientious  judges 
to  be  swayed  by  national  partisanship  the  establishment  of  the 
international  prize  court  with  a final  jurisdiction  in  cases  involv- 
ing neutrals  would  be  a most  important  addition  to  these  sanc- 
tions of  neutral  rights.  The  United  States  has  signed  the  inter- 
national prize  court  convention  and  the  senate  has  recommended 
ratification.  The  same  is  true  of  the  Declaration  of  the  London 
naval  conference  designed  to  serve  as  a law  to  be  applied  by  that 
court.  It  has  therefore  done  the  most  in  its  power  to  add  this 
sanction  also  for  the  enforcement  of  its  duties  as  a belligerent. 


CHAPTER  XII.  OBLIGATIONS  OF  PREVENTION. 


INTRODUCTORY. 

A belligerent  state  while  acting  in  that  capacity  is  for  the 
most  part  represented  by  its  army  and  navy.  The  part  of 
international  law  defining  the  obligations  of  belligerents  to 
neutrals  therefore  consists  to  a considerable  extent  of  rules  of 
conduct  for  such  agencies  of  government.  The  land  and  naval 
forces  may  be  controlled  by  municipal  law.  The  obligations  of 
prevention  require  a state  to  exercise  this  control  and  prevent 
infractions  of  international  law  by  its  armed  representatives. 

With  the  theory  of  territorial  state  sovereignty,  neutral 
states  have  a right,  in  war  as  well  as  in  peace,  to  exclusive 
control  of  their  territory.^  As  has  been  noted  they  are  under 
an  obligation  to  vindicate  this  right  by  interning  armed  forces 
of  a belligerent  violating  their  territory.  The  belligerent  is 
under  an  equal  obligation  to  respect  this  right  by  preventing 
such  violations  of  neutral  territory. 

Although  with  a strict  application  of  the  theory  of  terri- 
torial sovereignty  the  state’s  interest  in  its  citizens  would  vanish 
as  soon  as  he  leaves  its  frontiers,  the  actual  law  recognizes  that 
states  have  a limited  right  to  protect  their  citizens  on  the  high 
seas  and  in  foreign  countries.  Belligerents  must  respect  this 
right  and  prevent  injury  to  such  persons  and  illegal  destruction 
of  their  property.  We  may  therefore  classify  the  obligations 
here  considered  into  those  of  preventing  (1)  violations  of  neu- 
tral territory,  and  (2)  injury  to  neutral  persons  and  property. 
Reserving  this  as  a secondary  classification,  we  will  divide  the 
obligations  of  prevention  primarily  into  those  relating  to  (1) 
acts  by  the  land  forces  and  (2)  acts  by  naval  forces. 

ACTS  BY  LAND  FORCES 

The  probability  of  land  forces  violating  neutral  territory 
or  injuring  neutral  individuals  is  much  less  than  in  the  case  of 
naval  forces,  yet  the  United  States  has  recognized  by  treaty  the 
duty  of  preventing  its  land  forces  performing  certain  acts, 
ipor  exceptions  to  this  general  statement  see  supra  p.  45  et  seq. 

172 


173] 


BELLIGERENT  AND  NEUTRALS 


173 


(1)  By  the  Hague  conventions, “ a belligerent  is  forbidden 
to  violate  neutral  territory  by  moving  troops  or  convoys  of  mili- 
tary material  across  it,  erecting  wireless  stations  or  other  means 
of  communication,  or  by  recruiting  corps  of  combatants  thereon. 
It  would  therefore  appear  to  be  incumbent  upon  the  United 
States  to  prevent  its  land  forces  performing  any  of  these  acts 
on  neutral  territory  in  time  of  'war. 

There  appear  to  have  been  no  cases  of  prosecution  of  army 
officers  for  violating  neutral  territory  in  time  of  war,  but  in  an 
opinion  of  the  judge  advocate  general  in  1908^  it  was  stated 
that  the  armed  forces  of  the  United  States  should  not  be  per- 
mitted to  penetrate  neutral  territory  in  the  process  of  enforcing 
the  neutrality  laws.  In  the  army  regulations  relating  to  garri- 
son inspection  the  inspectors  are  required  to  see  that  the  com- 
manding officer  is  properly  executing  the  laws  relating  to  neu- 
trality and  the  regulations  concerning  international  courtesy, 
so  far  as  applicable  to  his  post.^ 

(2)  The  United  States  has  recognized  its  duty  to  prevent 
the  injury  of  neutral  persons  through  seizure  of  property  on 
land,  in  the -Hague  Conventions.®  The  general  prohibitions 
relating  to  seizure  of  enemy  property  on  land  apply  to  neutrals 
in  enemy  territory,  and  special  provisions  are  included  requir- 
ing compensation  in  case  railway  material  is  requisitioned.  By 
the  principles  of  Anglo-American  law  the  status  of  property 
depends  upon  its  territorial  location  rather  than  the  nationality 
of  the  owner ; consequently  neutral  property  on  enemy  territory 
is  subject  to  the  same  consideration  as  enemy  property  in  that 
situation.®  This  question  will  be  more  fully  considered  in  deal- 

“Hague  Conventions,  1907,  Malloy,  p.  2297,  v.  Art.  1-3. 

^Digest  of  Opinions  of  the  Judge  Advocates  General  of  the  Army,  1912, 
C.  R.  Howland,  ed.,  p,  106. 

^Army  Regulations,  1913,  sec.  889,  p.  171-172. 

^The  Hague  Conventions,  v.  Art.  19,  Malloy,  p.  2297. 

®On  the  enemy  character  of  the  produce  of  enemy  soil  see.  Thirty 
Hogshead  of  Sugar  vs.  Boyle,  9 Cranch  191,  The  Prize  Cases,  2 Black  635, 
671.  On  the  enemy  character  of  property  of  citizens  or  neutrals  domi- 
ciled in  enemy  territory,  see,  Chester  vs.  The  Experiment,  Fed.  Court  of 
Appeals,  2 Dali.  41,  (1787)  ; U.  S.  vs.  Gillies,  Pet.  C.  C.  159;  The  Venus, 
8 Cranch  253,  (1814)  ; The  Frances,  8 Cranch,  335,  363,  (1814)  ; The  Mary 
and  Susan,  i Wheat.  46;  Rogers  vs.  Amado,  i Newb.  Adm.  400;  The  Wil- 
liam Bagley,  5 Wall.  377;  Gates  vs.  Goodloe,  loi  U.  S.  612;  Mrs.  Alexan- 
der’s Cotton,  2 Wall.  404,  419.  On  the  general  subject  see  Moore’s  Digest, 
7 ;424-434. 


174  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [174 

ing  with  the  law  of  war.  Suffice  it  to  say  here  that  the  Instruc- 
tions for  the  government  of  the  armies^  state,  and  the  courts 
have  reiterated®  that  private  property  cannot  be  seized  on  land 
except  by  requisition  in  case  of  necessity,  unless  an  act  of  con- 
gress especially  permits. 

In  a number  of  treaties  the  United  States  has  agreed  not  to 
draft  resident  subjects  of  the  other  contracting  power  for  mili- 
tary service  in  case  of  war.®  With  the  exception  of  treaties 
relating  to  claims  for  injuries  in  specific  cases, these  treaties 
appear  to  contain  the  only  formal  provisions  imposing  duties 
upon  the  United  States  in  reference  to  the  injury  of  persons 
of  neutral  states  in  land  warfare.  Whether  or  not  a belligerent 
state  is  responsible  for  injuries  received  by  aliens  resident  in 
its  territory,  due  to  the  exercise  of  martial  law,  or  the  conduct 
of  actual  hostilities,  is  not  altogether  clear  in  international  law.^^ 
Undoubtedly  a state  is  bound  to  prevent  its  armed  forces  un- 
necessarily and  wantonly  injuring  neutral  residents,^^  but  it 
seems  clear  that  it  is  under  no  such  duty  when  the  actual  prose- 
cution of  military  movements  creates  a necessity.^®  The  neutral 
alien  assumes  the  risk  of  his  residence.  No  statutes,  regulations 
or  official  opinions  of  the  military  law  of  the  United  States 
appear  to  bear  on  this  point,  if  we  except  the  provisions  relating 
to  the  usual  exemption  of  enemy  private  property  contained  in 

’’Instructions  for  the  government  of  the  armies  of  the  United  States 
in  the  Feld,  Art  38;  Printed  in  The  Military  Laws  of  the  United  States, 
1911,  p.  1079;  Naval  War  College,  International  Law  Discussions  1903,  p. 
122. 

*Brown  vs,  U.  S.,  8 Cranch  no,  (1814). 

^Treaties  with  Argentine  Republic,  1843,  art.  10,  Malloy,  p.  23;  Congo, 
1891,  art,  3,  p.  329;  Costa  Rica,  1851,  art  9,  p.  344;  Dominican  Republic, 
1867-1868,  art  2,  p.  404;  France,  1788-1798,  art  14,  p.  495;  Hayti,  1864- 
1905,  art.  8,  p.  923;  Honduras,  1864,  art  9,  p.  955;  Italy,  1871,  art.  3,  p.  970; 
Japan,  1894,  art  i,  p.  1029;  Mexico,  1831-1881,  art,  9,  p.  1088;  Paraguay, 
1859,  art.  II,  p.  1367;  Servia,  1881,  art.  4,  p.  1703;  Tonga,  art.  9,  p.  783; 
Two  Sicilies,  1855-1861,  art.  5,  p,  1816;  Venezuela,  1860-1870,  art.  2,  p. 
1846. 

i^Treaty  of  Washington,  with  Great  Britain,  1871,  art.  12,  Malloy,  p. 
705.  The  commission  provided  allowed  Great  Britain  $1,929,819  for  inju- 
ries to  British  subjects  during  the  Civil  war.  See  note  Malloy,  p.  705. 
Treaty  with  France,  1880,  Malloy,  p.  535.  France  was  awarded  $625,566.35 
for  injuries  to  her  subjects  during  the  Civil  war.  Malloy,  p.  539, 

iiMoore’s  Digest,  6;883-926 

^^Moore’s  Digest,  61918-922. 

i^Moore’s  Digest,  6)883-894. 


175] 


BELLIGERENT  AND  NEUTRALS 


175 


Lieber’s  instructions.^*  Military  commissions  undoubtedly  have 
a jurisdiction  to  punish  acts  forbidden  by  the  treaties  men- 
tioned, but  the  protection  of  resident  neutrals  during  war  is 
largely  left  within  the  discretion  of  the  president  as  commander 
in  chief  of  the  army,  and  subordinate  military  authorities  with 
delegated  powers. 

(3)  As  the  actual  enforcement  of  the  state’s  duties  of 
prevention  in  relation  to  the  army  depends  upon  the  method  of 
control  exercised,  some  attention  may  be  given  to  this  point.^® 
The  discipline  of  the  army  is  to  a large  extent  governed  by 
formal  rules,  but  these  rules  are  to  a considerable  extent  en- 
forced by  the  discretionary  authority  of  high  military  officers. 
In  the  field  covered  by  constitutionally  enacted  congressional 
statutes,  the  army  is  bound  beyond  the  authority  of  any  execu- 
tive or  military  officer  to  transcend,  but  in  matters  relating 
purely  to  the  conduct  of  war  it  is  doubtful  whether  congress  has 
the  power  to  control  the  army  by  statute.^® 

This  does  not,  however,  mean  that  the  army  is  unregulated 
by  law.  It  has  a system  of  law  of  its  own,  known  as  military 
law,  administered  by  its  own  officers  and  courts.  The  president 
as  commander  in  chief  has  complete  discretion  as  to  the  move- 
ments of  the  army  except  so  far  as  limited  by  the  constitution 
and  acts  of  congress  within  the  competence  of  that  body.^’’ 
While  the  president’s  authority  is  discretionary  and  may  be 
altered  at  will,  as  a matter  of  fact  it  is  exercised  by  means  of 
more  or  less  permanent  regulations  and  instructions  issued  as 
general  orders.  These  regulations  have  the  force  of  law  while 
operative,^®  and,  together  with  statutes  and  constitutional  pro- 
visions, their  interpretations  found  in  judicial  decisions  and 

i^Lieber’s  Instructions,  art.  38,  Military  Laws,  1911,  p.  1079. 
i^The  statutory  laws  relating  to  the  control  of  the  army,  annotated 
with  references  to  court  decisions  and  opinions  of  attorneys  general  and 
judge  advocates  general,  may  be  found  in  The  Military  Laws  of  the  United 
States,  1901,  ed.  by  G.  B.  Davis,  with  a supplement  to  1911,  ed.  by  J.  B. 
Porter.  The  Digest  of  Opinions  of  the  Judge  Advocates  General  of  the 
Army,  published  in  1912,  also  contains  references  to  statutes,  cases  and 
opinions  of  attorneys  general  bearing  on  the  various  points. 

i®On  the  independence  of  the  president  see  Military  Laws,  I9ii>  P-  5 
and  notes.  See  Kendall  vs.  U.  S.  12  Pet.  524,  610;  Marbury  vs.  Madison, 
I Cranch  137,  166. 

i^Military  Laws,  1911,  p.  5,  note  2. 

^®U.  S.  vs.  Barrows,  Fed.  Cas.  14,529;  Dig.  of  Op.  of  Judge  Ad.  Gen.,^ 
1912,  p.  681. 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


176 


[176 


opinions  of  attorneys  general  and  judge  advocates  general  form 
the  body  of  military  law. 

Military  law  is  enforced  by  executive  action/®  as  in  the 
power  of  promotion,  demotion  and  discharge  exercisable  by 
superior  military  officers ; by  courts  martial,"®  whose  jurisdiction 
is  defined  by  statute  and  extends  only  over  statutory  military 
offences,  most  of  which  are  included  in  the  Articles  of  War/^ 
and  by  military  commissions.--  Military  commissions  adminis- 
ter military  law  by  a procedure  similar  to  courts  martial,  but 
they  are  not  limited  to  the  punishment  of  statutory  offenses. 
They  may  take  cognizance  of  acts  contrary  to  the  unwritten 
law  of  war  or  to  military  regulations. 

The  jurisdiction  of  both  courts  martial  and  military  com- 
missions is  of  an  exclusively  criminal  character.-®  They  decree 
punishments  but  do  not  award  damages  or  reparation  of  any 
kind.  Their  jurisdiction,  however,  is  not  territorial.®^  It  ex- 
tends over  offenses  committed  in  foreign  countries. 

The  statutory  provisions,  known  as  the  Articles  of  War,®'^ 
largely  prescribe  duties  of  enlisted  men  and  officers®®  in  relation 
to  their  military  superiors  and  the  performance  of  their  military 
duties.  Their  aim  is  to  enforce  discipline  in  the  army  and  they 
contain  little  matter  referring  to  the  law  of  war.  Courts  mar- 
tial, being  limited  in  jurisdiction  to  these  offenses,  cannot  take 
cognizance  of  breaches  of  the  unwritten  law  of  war,  including 
breaches  of  the  army’s  obligations  to  neutral  states  and  persons. 
The  enforcement  of  these  matters  is  in  the  hands  of  military 
commissions  and  their  jurisdiction  in  time  of  war  extends  to 

^^Military  Laws,  1911,  p.  5,  note  2. 

20Digest  of  Op.  of  Judge  Ad.  Gen.,  1912,  pp.  510-513. 

2iRev.  Stat.,  sec.  1342-1343 ; Military  Laws,  1911,  pp.  962-1026.  For 
historical  account  of  development  of  articles  of  war;  Military  laws,  1911, 
p.  962. 

22For  history  of  development  of  military  commissions  see  Dig.  of  Op. 
of  Judge  Ad.  Gen.  1912,  p.  1067.  Use  during  Civil  War,  Ibid.  p.  1071.  Au- 
thority of,  see  Rev.  Stat.  1343.  Military  Laws,  1911,  p.  744,  note  i,  p.  745; 
Lieber’s  Instructions,  art.  13,  Military  Laws,  1911,  p.  1076;  Dig.  Op.  Judge 
Ad.  Gen.,  1912,  pp.  1067-1072. 

23Dig.  Op.  Judge  Ad.  Gen.,  1912,  pp.  510,  1072. 

24Dig.  Op.  Judge  Ad.  Gen.,  1912,  pp.  51 1,  1071. 

2"Rev.  stat.  sec.  1342-1343,  Military  Laws,  1911,  pp.  962-1026. 

26 An  exception  may  be  noted  in  the  jurisdiction  given  to  courts  mar- 
tial over  enemy  spies.  Rev.  Stat.  sec.  1343,  Military  Laws,  1911,  p.  1026. 


177] 


BELLIGERENT  AND  NEUTRALS 


177 


offenses  committed  by  enlisted  men  or  officers,  civilians  or  ene- 
mies, contrary  to  military  law  or  the  law  of  waru^ 

It  is  therefore  by  executive  action  and  the  adjudication  of 
military  commissions  that  the  duties  of  the  army  toward  neu- 
trals are  enforced.  The  provisions  of  the  treaties  mentioned, 
and  the  general  requirements  of  international  law,  as  well  as  the 
rules  specified  in  army  regulations  and  instructions  may  be 
enforced  by  these  authorities. 

ACTS  BY  NAVAL  FORCES 

The  naval  forces  of  a belligerent  are  much  more  likely  to 
infringe  the  rights  of  neutral  states  than  land  forces.  With 
them  therefore  the  duty  of  preventing  such  infractions  has 
received  more  attention  in  the  municipal  law  of  the  United 
States. 

(1)  By  the  Hague  conventions^*  the  United  States  has 
recognized  the  obligation  to  prevent  its  naval  forces  violating 
neutral  territory  by  committing  hostilities  or  setting  up  prize 
courts  in  neutral  waters,  using  neutral  territory  as  a base  of 
operations  or  violating  the  usual  rules  of  asylum. 

As  in  the  case  of  the  army  the  action  of  naval  commanders 
is  largely  regulated  by  executive  control.  There  are,  however, 
statutes  dealing  with  the  navy.  The  “Articles  for  the  Govern- 
ment of  the  Navy  of  the  United  States”^®  specify  certain  acts 
as  crimes  and  subject  to  the  jurisdiction  of  courts  martial.  The 
only  authority  capable  of  inflicting  punishment  in  the  navy  is 
commanders,*®  for  minor  offenses,  and  for  more  serious  offenses, 
summary  and  general  courts  martial.*^  There  are  no  courts  in 
the  navy  similar  to  military  commissions. 

the  distinction  between  the  jurisdiction  of  military  commissions 
and  courts  martial,  see  Lieber’s  Instructions,  art  13,  Military  Laws,  1911, 
p.  1076. 

28Hague  Conventions,  1907,  xiii,  art.  i,  4,  5,  12,  15-23.  In  thirty- 
two  treaties  with  twenty-five  countries  the  United  States  has  been  given 
the  right  of  asylum  for  its  war  vessels  in  neutral  ports,  when  necessary 
through  “stress  of  weather,  pursuit  of  pirates  or  enemies.”  The  follow- 
ing are  now  in  force:  Bolivia,  1858,  art.  9,  Malloy,  p.  117;  Prussia,  1799- 
1810,  revived  1828,  art.  18,  19,  p.  1492;  Sweden,  1783-1798,  revived  1816, 
1827,  art.  21,  p.  1732.  Such  action  does  not  constitute  a violation  of  neu- 
tral territory  even  in  the  absence  of  treaty.  Moore’s  Digest,  71982-985. 

2®Rev.  Stat.  sec.  1624;  Navy  Regulations  1913,  p.  i5- 

3®Rev.  Stat.  sec.  1624,  art.  24. 

3iRev.  Stat.  sec.  1624,  art.  22,  26,  38. 


178  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [178 

In  addition  to  statutory  provisions,  the  navy  is  governed 
by  bodies  of  rules  known  as  navy  regulations  and  naval  instruc- 
tions which  are  promulgated  by  the  president  and  have  the 
force  of  law  until  repealed. 

No  statutory  provisions  deal  with  violations  of  neutral 
territory,  but  regulations  and  instructions,^^  since  the  Eevolu- 
tionary  war,  have  enjoined  officers  to  respect  neutral  rights  and 
especially  to  refrain  from  hostilities  in  neutral  territory.  Thus 
by  the  Navy  Kegulations  of  1913  commanders  in  chief  are  to 
‘‘scrupulously  respect  the  territorial  authority  of  foreign  civil- 
ized nations  in  amity  with  the  United  States. 

(2)  The  duty  of  preventing  its  naval  forces  injuring  neu- 
tral individuals  involves  largely  restraints  which  such  forces 
are  bound  to  observe  in  exercising  the  belligerent  right  of  seiz- 
ing neutral  prizes  on  the  high  seas.  The  law  applied  by  courts 
in  enforcing  the  government’s  duty  to  abstain  from  illegally 
confiscating  neutral  prizes  has  been  considered.  Here  we  will 
consider  the  methods  by  which  naval  forces  are  prevented  from 
making  such  seizures,  or  otherwise  injuring  neutral  persons. 

It  must  be  observed  that  the  acts  prohibited  in  performing 
these  duties  of  prevention  and  abstention  are  not  exactly  the 
same.  The  belligerent  must  prevent  a prima  facie  unjustifiable 
seizure,  but  even  when  the  seizure  is  justifiable  the  government 
may  be  bound  to  abstain  from  confiscating  the  prize.  Thus  it 

3-Regulations  for  the  government  of  the  Navy  of  the  United  States, 
Washington,  1913,  under  authority  of  Rev.  Stat,  sec.  1547. 

33Naval  Instructions,  Apr.  3,  1776,  Apr.  7,  1781,  (Journ.  Cong.,  Ford, 
ed.,  4;253,  i9;36i)  ; Aug.  28,  1812,  (2  Wheat.  App.  80,  Moore’s  Digest, 

7 1545.  Authority  for  the  issuance  of  these  orders  was  given  in  the  prize 
act  of  1812,  2 stat.  760,  sec.  8.  They  were  upheld  in  the  Thomas  Gibbons, 

8 Cranch  421,  (1814),  but  in  the  Mary  and  Susan,  i Wheat.  46,  57,  (1816) 
it  was  held  that  the  captor  must  be  notified  of  the  order  before  his  right 
to  prize  money  from  vessels,  captured  contrary  to  them,  would  be  af- 
fected) ; May  14,  1846,  (Br.  and  For.  St.  Pap.,  34;ii39,  Moore’s  Digest, 
7;828);  Dec.  24,  1846,  (Moore’s  Digest,  7;79o);  Nov.  6,  1861;  May  14, 
1862,  (Upton,  op.  cit.  p.  490)  ; Aug.  18,  1862,  (Official  Records,  Union 
and  Confederate  Navies,  Ser.  i,  i ;4i7»  Moore’s  Digest,  7;70o);  June  20, 
1898,  (Gen.  Ord.,  Navy  Dept.,  1898,  No.  492,  For.  Rel.,  1898,  p.  780)  ; 
Jan.  27,  1900,  (Gen.  Ord.,  Navy  Dept.,  1900,  No.  551,  revoked.  Ibid.,  Feb. 
4,  1904,  No.  150)  ; Navy  Regulations,  1913,  sec.  1645,  1647. 

34Navy  Regulations,  1913,  sec.  1645.  Naval  commanders  are  allowed 
some  discretion  under  these  rules.  See  note  at  head  of  chapter  15,  Navy 
Regulations,  1913,  p.  iSQr. 


179] 


BELLIGERENT  AND  NEUTRALS 


179 


frequently  happens  that  a naval  officer  will  he  held  completely 
justified  in  making  a seizure  even  though  the  prize  after  adju- 
dication is  restored  to  the  neutral  owner.®® 

It  might  be  supposed  that  the  means  adopted  to  prevent 
illegal  seizure  of  neutral  property  at  sea  would  be  a matter  of 
purely  national  concern  and  would  not  be  specified  by  interna- 
tional law.  This  is  not  the  case.  The  exercise  of  belligerent 
rights  over  neutral  commerce  is  so  important  and  so  subject  to 
abuse  that  international  law  has  to  some  extent  specified  the 
exact  means  which  a state  must  provide  for  carrying  out  this 
obligation.  Thus,  it  forbids  captures  by  privateers,  requires 
certain  specified  formalities  of  visit  and  search,  and  demands 
adjudication  of  the  prize  by  a court  acting  in  the  usual  form  of 
judicial  bodies.  The  belligerent  state  is  of  course  at  liberty  to 
enact  supplementary  laws  better  to  fulfill  its  duties  under  this 
head.  Among  such  acts  in  force  in  the  United  States  may  be 
mentioned  the  statutes  abolishing  prize  money,  and  those  affix- 
ing criminal  penalties  for  the  spoliation  of  prizes.  Before  the 
abolition  of  privateering  the  requirement  of  bonds  from  priva- 
teers and  the  enforcement  of  liability  against  the  owners  of  pri- 
vateers were  rules  of  this  character.  The  abolition  of  priva- 
teering and  the  attempted  abolition  of  prize  money  at  the  Sec- 
ond Hague  conference  are  illustrations  of  the  tendency  of  inter- 
national law  to  enter  more  and  more  this  field,  formerly  left  to 
the  discretion  of  states. 

The  United  States  has  taken  measures  to  prevent  the  illegal 
seizure  of  prizes  by  restricting  the  classes  of  vessels  wffiich  may 
make  seizures,  by  prescribing  rules  for  visit  and  search  of  neu- 
tral vessels,  and  by  affixing  penalties  for  making  unjustifiable 
seizures.  An  improper  treatment  of  prizes  and  their  crews  is 
also  prevented  by  municipal  law.  Definite  rules  for  the  conduct 
of  prizes  have  been  prescribed.  Criminal  penalties  enforceable 
by  court  martial  proceedings  against  persons  in  the  navy  violat- 
ing these  rules,  as  well  as  liability  to  civil  suit  for  damages,  add 
sanctions  to  their  enforcement.  Adjudication  of  prizes  has  also 
been  provided  for  by  the  establishment  of  courts,  of  prize  juris- 
diction. These  matters  will  be  considered  in  greater  detail  in 
the  following  sections  dealing  with  the  seizure  of  prizes,  the 
care  and  treatment  of  prizes  and  the  adjudication  of  prizes. 

35The  Marianna  Flora,  ii  Wheat,  i,  (1826). 


180  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [180 

SEIZURE  OF  PRIZES 

The  United  States  has  authorized  seizures  during  war  by 
three  varieties  of  vessels,  (1)  privateers,  (2)  converted  mer- 
chantment,  (3)  vessels  of  the  navy. 

( 1 ) The  use  of  privateers  or  private  armed  vessels  in  war  was 
prohibited  by  the  Declaration  of  Paris  of  1856.  The  United 
States  has  not  acceded  to  this  declaration,^®  but  refrained  from 
using  privateers  during  the  Civil  war,®^  and  by  proclamation  at 
the  outbreak  of  the  Spanish  war  of  1898  disclaimed  intention 
to  use  them  during  that  war.®®  Privateers  have  not  been  ex- 
tensively used  since  1856  and  it  may  safely  be  said  that  their 
use  is  now  forbidden  by  international  law. 

The  United  States  made  free  use  of  privateers  in  the  Revo- 
lutionary war  and  the  War  of  1812.  On  these  occasions  efforts 
were  made  to  prevent  illegal  seizures  through  rules  of  municipal 
law  expressed  in  treaties,  statutes,  naval  instructions  and  court 
decisions.  Privateers  were  provided  with  commissions  or  letters 
of  marque  accompanied  by  special  instructions  stating  the  scope 
and  limits  of  their  right  to  seize  property.®®  These  commissions 

3®The  United  States  did  not  accede  to  the  Declaration  of  Paris  be- 
cause not  having  a navy  it  considered  this  type  of  naval  militia  necessary 
until  the  right  to  capture  private  property  at  sea  should  be  abolished  al- 
together. This  complete  exemption  has  been  a tradition  of  American 
policy  since  earliest  times.  In  a treaty  with  Bolivia,  of  1858,  it  was  recip- 
rocally' agreed  to  give  asylum  to  privateers  until  the  two  parties  should 
relinquish  their  use,  “in  consideration  of  the  general  relinquishment  of 
the  right  of  capture  of  private  property  upon  the  high  seas,”  art.  9,  Mai. 
loy,  p.  1 1 7. 

2^0n  proposals  to  issue  letters  of  marque  during  the  Civil  War  and 
reasons  for  not  doing  so,  see  Moore’s  Digest,  7 ;556.  An  act  of  March  3, 
1863,  12  stat.  758,  gave  the  president  authority  to  issue  letters  of  marque. 
ssProclamation,  Apr.  26,  1898,  30  stat.  1770;  Moore’s  Digest,  7;54i- 
3®Privateers  were  authorized  by  a resolution  of  the  Continental  con- 
gress, March  23,  1776.  On  April  2 and  3,  forms  of  commission  were 
adopted  to  be  sent  in  blank  to  the  colonies.  About  1700  letters  of  marque 
were  issued  during  the  Revolutionary  war.  See  Allen,  Naval  History  of 
the  American  Revolution,  i ;45i ; 2;70i.  During  the  War  of  1812,  pri- 
vateers were  of  great  importance.  In  the  Civil  war  the  Confederate 
states  issued  letters  of  marque  and  an  act  of  Mch.  3,  1863,  authorized 
their  issuance  by  the  federal  government.  Regulations  and  instructions 
were  drawn  up  on  Mch.  20,  1863,  but  as  a matter  of  policy  no  commissions 
were  issued.  See  Moore’s  Digest,  7;556.  See  Resolutions  of  Congress, 
Mch.  23,  1776,  Instructions  Apr.  3,  1776,  Apr.  17,  181,  (Journ.  Cong., 
Ford,  ed.,  4 ',230,  253,  I9;36i);  Instructions,  Aug.  28,  1812,  (2  Wheat. 
App.  80)  (Moore’s  Digest,  7 1544) . On  necessity  of  carrying  commissions 
see  Upton,  op.  cit.  p.  177. 


181] 


BELLIGERENT  AND  NEUTRALS 


181 


could  be  declared  forfeited  at  the  discretion  of  the  president.^® 
By  treaties*^^  and  statutes^-  privateers  were  required  to  furnish 
bond  or  other  security  for  good  behavior.  An  act  of  1812^^ 
required  privateers  to  keep  a journal  which  was  to  be  inspected 
by  the  commanders  of  naval  vessels  meeting  the  privateer  at 
sea,  prohibited  cruising  without  special  instructions,  and  de- 
clared prize  money  forfeited  in  case  of  illegal  seizures.  Courts 
have  held  the  owners  of  privateers  responsible  for  the  conduct 
of  the  officers  and  crew  of  the  vessel  to  the  full  value  of  property 
injured  or  destroyed.^^ 

It  should  be  noted,  however,  that  an  illegal  act  done  by  a 
privateer  would  not  operate  to  invalidate  the  captures  so  far  as 
the  United  States  government  was  concerned.  The  captor  might 
forfeit  his  prize  money,  bond  and  commission,  but  if  the  vessel 
were  declared  good  prize  by  the  court,  the  neutral  owner  would 
have  no  recourse.  Thus  a non-commissioned  vessel, or  a vessel 
manned  by  a neutral  or  even  an  enemy  crew^®  might  make  a 
capture,  valid  as  against  the  belligerent  or  neutral  owner,  al- 
though the  officers,  crew  and  owners  themselves  might  be  subject 
to  criminal  punishment  or  civil  liability. 

(2)  The  use  of  converted  merchant  vessels  in  war  was 
provided  for  in  the  mail  subsidy  act  of  1891,^^  and  a number  of 
vessels  of  this  character  were  used  during  the  Spanish  war. 

40Act  June  26,  1812,  2 stat.  760.  See  Upton,  Op.  cit.,  p.  181,  185;  The 
Thomas  Gibbons,  8 Cranch  421. 

^^Treaties  with  Great  Britain,  1794-1807,  art.  19,  Malloy,  p.  602; 
France,  1800-1809,  art.  23,  p.  504;  Netherlands,  1782-1795,  art.  14,  p.  1238; 
Prussia,  1785-1796,  art.  15,  p.  1482;  Sweden,  1783-1798,  revived  treaty  of 
1827,  art.  16,  p.  1730. 

^2Act  July  9,  1798,  I stat.  578;  June  26,  1812,  2 stat.  760. 

^^Act  June  26,  1812,  2 stat.  760;  Instructions  to  privateers,  Aug.  28, 
1812,  2 Wheat.  App.  80,  Moore’s  Digest,  7;544. 

^^Del  Col  vs.  Arnold,  3 Dali.  333,  (1796).  The  liability  of  the  owners 
was  held  to  extend  only  to  acts  committed  by  the  officers  and  crew  in 
making  captures  in  Davis  vs.  The  Revenge,  3 Wash.  262.  For  acts  done 
not  in  pursuance  of  the  commission  the  owner  was  held  not  liable,  see 
The  Amiable  Nancy,  i Paine  ii. 

^^The  Joseph,  i Gall.  545,  Upton,  op.  cit.  178. 

4®The  Mary  and  Susan,  i Wheat.  46. 

Act  March  3,  1891,  26  stat.  830,  sec.  9.  See  also  act  July  17,  1862,. 
12  stat.  600,  sec.  8,  for  recognition  of  “armed  vessels  in  the  service  of 
the  United  States”  distinct  from  either  privateers  or  vessels  of  the  navy» 
and  The  Rita,  69  Fed.  Rep.  763.  Moore’s  Digest,  7;538-543- 


•182 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[182 


One  of  the  Hague  conventions  of  1907^®  contains  regulations 
for  the  use  of  such  vessels,  but  it  was  not  signed  or  ratified  by 
the  United  States.  The  United  States  has  always  put  converted 
merchantmen  under  the  command  of  regular  naval  officers  and 
subjected  their  crews  to  naval  discipline.  The  measures  taken 
to  prevent  violation  of  the  rights  of  neutral  persons  by  regular 
naval  forces  are  therefore  applicable  to  them. 

(3)  In  a number  of  its  early  treaties  the  United  States 
put  itself  under  the  obligation  to  prevent  warships  exercising 
the  right  of  visit  and  search  over  vessels  under  neutral  convoy, 
or  the  right  of  search  over  vessels  bearing  a passport  or  sea 
letter  of  their  country  when  neutral.®®  Specific  requirements 
for  conducting  visit  and  search®^  were  often  included  in  these 
treaties  and  the  right  of  action  for  damages  received  by  the 
neutral  individual  from  a United  States  warship  or  privateer®- 
was  frequently  granted.  The  treaty  requirement  of  bonds,  en- 
suring the  good  behavior  of  privateers,  has  already  been 
mentioned.®^ 

According  to  the  declaration  of  London  vessels  under  neu- 
tral convoy  are  exempt  from  visit  and  search.®^  Illegal  seizures 
are  guarded  against  by  the  provision  entitling  the  owner  to  com- 
pensation if  his  vessel  was  seized  without  sufficient  reason  and 
was  subsequently  released. 

^®Hague  Conventions,  1907,  vii. 

^^Respect  for  neutral  convoy  has  been  required  in  twenty-four  treat- 
ies with  nineteen  countries,  of  which  the  following  are  in  force : Bolivia, 
1858,  art.  23,  p.  309;  Colombia,  1846,  art.  23,  p.  309;  Italy,  1871,  art.  19, 
P-  975;  Sweden,  1783-1798,  revived  1816,  1827,  art.  12,  p.  1729. 

^®In  most  of  the  early  treaties  the  carriage  of  sea  letters  was  pro- 
vided for  in  terms  similar  to  that  of  the  French  treaty  of  1778-1798, 
art.  24,  27,  Malloy,  pp.  477,  478.  In  some  of  them  the  carriage  of  such  a 
passport  was  mandatory;  a failure  to  produce  it  if  not  explained  would 
result  in  condemnation  as  constructive  enemy  property.  Supra,  p.  161. 

®iAs  examples  of  treaty  provisions  prescribing  method  of  conducting 
visit  and  search  see  treaties  with  Prussia,  1785-1796,  art.  15,  p.  1482; 
1799-1810,  art.  IS,  p.  1491 ; Sweden,  1783-1798,  revived  treaties  1816,  1827, 
art.  25,  p.  1733. 

52Treaties  with  France,  1778-1798,  art.  15,  p.  4741  1800-1809,  art.  19, 
p.  504;  Netherlands,  1782-1795,  art.  13,  p.  1237;  Prussia,  1785-1796,  art. 
15,  p.  1482;  Sweden,  1783-1798,  revived  1816,  1827,  art.  15,  p.  1730. 

®3Supra,  p.  181,  note  41. 

^^Declaration  of  London,  1909,  art.  61,  64.  On  the  status  of  the 
Declaration  of  London  in  1914,  see  Am.  Jour.  Int.  Law,  9;i99>  Jan.  1915* 


183] 


BELLIGERENT  AND  NEUTRALS 


183 


In  instructions  issued  to  war  vessels  upon  the  outbreak  of 
wars,®^  and  in  general  naval  regulations^®  and  instructions,®^ 
methods  of  conducting  visit  and  search  and  other  duties  of  naval 
vessels  toward  neutral  persons,  required  by  treaty  and  interna- 
tional law,  have  been  specifically  enjoined. 

The  courts  have  held  that  the  making  of  seizures  without 
probable  cause  or  proper  authorization  by  law  even  when  done 
under  specific  order  of  the  president,  as  commander  in  chief  of 
the  navy,  renders  the  captor  liable  to  damages.®®  A seizure  in 
violation  of  international  law,  however,  when  specifically  author- 
ized by  municipal  law,  is  permissible  so  far  as  the  captor  is  con- 
cerned.®® The  only  recourse  in  such  cases  is  through  diplomatic 
protest. 


CARE  AND  TREATMENT  OF  PRIZES 

A prize  having  been  seized,  five  courses  are  open  to  the 
captor,  (1)  bringing  in  to  home  port  for  adjudication,  (2)  de- 
struction, (3)  ransom,  (4)  sequestration  in  a neutral  port  or  sale 
in  neutral  territory,  (5)  release.  The  treatment  which  a neu- 
tral state  has  a right  to  expect  under  international  law  and  the 
measures  which  the  United  States  has  taken  to  prevent  its  naval 
forces  infringing  those  rights  will  now  be  considered. 

(1)  A number  of  early  treaties®®  required  the  preservation 
of  prizes  intact  until  adjudication  by  a prize  court,  and  the  hos- 
pitable treatment  of  the  officers  and  crew. 

The  Declaration  of  London®^  requires  prizes  to  be  brought  to 
port  for  adjudication  and  forbids  the  destruction  of  either  vessel 

^^Naval  Instructions,  Apr.  3,  1776,  (Jour.  Cong.,  Ford,  ed.,  4;253)  ; 
Apr.  7,  1781,  (Jour.  Cong.,  Ford,  ed.,  I9;36i)  ; Aug.  28,  1812,  (2  Wheat. 
App.  80,  Moore’s  Digest,  7)544);  1813,  Special  Instructions,  (Am.  St. 
Pap.,  Nav.  Afif.,  i ;373,  Moore’s  Digest,  7;5i6);  May  14,  1846,  (Br.  and 
For.  St.  Pap.,  34;  1139)  ; Dec.  24,  1846,  (Moore’s  Digest,  7;79o)  ; May  14, 
1862,  (Upton,  op.  cit,  p.  490)  ; Aug.  18,  1862,  (Rec.  Union  and  Conf. 
Navies,  Ser.  i,  i ;4i7,  Moore’s  Digest,  71700);  June  20,  1898,  (For.  Rel, 
1898,  p.  780). 

56Navy  Regulations,  1913,  sec.  1634. 

^’’Stockton’s  Naval  War  Code,  1900-1904,  art.  30,  32,  33. 

®®Little  vs.  Barreme,  2 Cranch  170,  (1804)  ; The  Thompson,  3 Wall. 
155;  The  Dashing  Wave,  5 Wall.  170;  see  also  Moore’s  Digest,  7;593-598. 
59La  Maissonaire  vs.  Keating,  2 Gall.  334.  See  Upton,  op.  cit,  p.  189. 
®®As  an  example  see  treaty  with  France,  1800-1809,  art.  20,  21,  Malloy, 

p.  503. 

“^Declaration  of  London,  1909,  art.  48-54. 


184 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[184 


or  cargo,  unless  the  prize  would  be  liable  to  condemnation  and  an 
attempt  to  bring  it  in  for  adjudication  “would  involve  danger 
to  the  ship  of  war  or  to  the  success  of  the  operation  in  which  she 
is  at  the  time  engaged.”  If  the  prize  is  destroyed,  persons  on 
board  and  the  ship’s  papers  must  be  saved  and  the  captor  is  de- 
clared liable  to  pay  compensation  if  he  cannot  prove  the  existence 
of  circumstances  justifying  destruction,  irrespective  of  the  valid- 
ity of  the  capture.  A decree  of  restitution  of  the  vessel  or  part 
of  its  cargo  in  such  a case  involves  compensation. 

By  the  articles  for  the  government  of  the  navy,®^  punishment 
by  death  or  other  sentence  of  court  martial  is  authorized  to  any- 
one destroying  or  injuring  prizes  or  maltreating  persons  on  board 
of  them,  and  in  the  instructions  for  the  navy  issued  on  the  out- 
break of  war,  as  well  as  in  permanent  instructions,  rules  for  the 
care  of  prizes  and  their  crew  have  generally  been  specified  and 
their  prompt  bringing  in  required.®^ 

The  courts  have  declared  that  it  is  the  captor’s  duty  to  bring 
prizes  in  for  adjudication  as  soon  as  possible®^  and  to  deliver  pa- 
pers and  necessary  witnesses  to  the  court.®®  Failure  to  perform 
these  duties  will  result  in  damages  to  the  neutral  owner  but  it  is 
only  for  “gross  misconduct  without  excuse  or  palliation”  that 
they  may  be  had.  “Much  indulgence  is  extended  to  errors  and 
even  improprieties  of  captors  when  no  malignity  or  cruelty  is 
justly  chargeable.”®® 

(2)  Special  instructions  to  privateers  and  warships  in  the 
war  of  1812®^  particularly  advised  destruction  of  prizes  and  this 

^“Resolution,  Nov.  25,  1775,  Journ.  Cong.,  Ford,  ed.,  31373;  Act,  Apr. 
23,  1800,  2 stat.  52;  July  17,  1862,  12  stat.  600;  Rev.  Stat.  sec.  1624,  art. 
6,  II,  12.  See  other  statutory  provisions  relating  to  the  administration 
of  prizes.  Act,  March  3,  1800,  i stat.  16;  June  26,  1812,  2 stat.  760;  June 
27,  1813,  2 stat.  793 ; March  25,  1862,  12  stat.  375 ; March  3,  1863,  12  stat. 
759;  June  30,  1864,  13  stat.  306;  Rev.  stat.  sec.  4615-4617. 

^^Stockton’s  Naval  War  Code,  1900-1904,  sec.  46,  47.  Supra,  note  57. 

®4The  Lively,  i Gall.  318;  The  Nassau,  4 Wall.  634;  Moore’s  Digest, 
7 ;63o. 

65The  Diana,  2 Gall.  95;  The  Bothnea  and  the  Jarnstoff,  2 Gall.  88. 

®®See  Upton,  op.  cit.  p.  200,  citing.  The  Lively  and  Cargo,  i Gall.  29; 
The  Anne,  3 Wheat.  435;  The  George,  i Mason,  24.  On  liability  of  cap- 
tor  for  damages,  see  also,  Slocum  vs.  Mayberry,  2 Wheat,  i ; The  Apollon, 
9 Wheat.  362;  The  Neustra  Senora  de  Regia,  108  U.  S.  92,  103,  (1882), 
and  Moore’s  Digest,  7)630.  Declaration  of  London,  1909,  art.  52,  53. 

67Special  Instructions,  1813,  Am.  St.  Pap.,  Navy  Aff.,  i ;373 ; Moore’s 
Digest,  7;5i6. 


185] 


BELLIGERENT  AND  NEUTRALS 


185 


action  was  permitted  by  the  instructions  to  blockading  vessels  in 
1898,®®  and  in  Stockton’s  Naval  War  Code.®®  But  in  the  last  two 
cases  bringing  in  was  required  unless  there  were  ‘^controlling 
reasons”  for  not  doing  so,  such  as  “unseaworthiness,  the  exist- 
ence of  infectious  diseases,  lack  of  a prize  crew,”  or  imminent 
danger  of  recapture. 

These  provisions  of  statutes  and  executive  orders  indicate 
that  the  destruction  of  prizes  is  permitted  under  certain  circum- 
stances, but  the  practice  has  been  discouraged  except  during  the 
war  of  1812.  In  discussions  of  the  subject  in  the  Naval  War  Col- 
lege in  1905  and  1907  the  release  of  neutral  prizes  which  could 
not  be  brought  into  port  was  recommended.’'® 

(3)  Ransom  or  the  release  of  the  prize  by  the  captor  on  sig- 
nature of  a ransom  bill  generally  accompanied  by  a hostage  to 
insure  payment  is  permitted  by  law  in  the  United  States.  The 

^^Instructions  to  Blockading  Vessels  and  Cruisers,  June  20,  1898, 
For.  Rel.  1898,  p.  780,  Moore’s  Digest,  7;5i8. 

^^Stockton’s  Naval  War  Code,  art.  50;  Moore’s  Digest,  7 ',526. 

■^oNaval  War  College,  International  Law  Discussions,  1905,  pp.  62-76] 
I907>  P-  75-  la  these  discussions  a distinction  is  drawn  between  the  de- 
struction of  neutral  and  enemy  prizes,  the  former  being  forbidden.  See 
also  T.  E.  Holland,  Neutral  Duties  in  Maritime  War,  Proceedings  British 
Academy,  2;i2,  quoted  Moore’s  Digest,  7;52i.  International  opinion  gen- 
erally condemns  the  destruction  of  neutral  prizes  and  British  courts  have 
upheld  this  view.  See  The  Zee  Star,  4 Rob.  71 ; The  Felicity,  2 Dods. 
283 ; The  Leucade,  Spinks  221 ; W.  E.  Hall,  International  Law,  4th  ed., 
p.  763 ; T.  J.  Lawrence,  International  Law,  p.  405 ; L.  Oppenheim,  Inter- 
national Law,  21469.  Russian  prize  regulations  of  March  27,  1895,  and 
Sept.  20,  1900,  (For.  Rel.,  1904,  pp.  735,  747,  752,  Moore’s  Digest,  7;5i9) 
permitted  destruction.  A notable  controversy  arose  from  the  destruction 
of  the  British  vessel  Knight  Commander  under  these  regulations  in  the 
Russo-Japanese  War.  The  Russian  prize  court  upheld  this  act.  (Hurst 
and  Bray,  Russian  and  Japanese  Prize  Cases,  2 vol.,  London,  1912,  i;54; 
S.  Takahashi,  International  Law  applied  to  the  Russo-Japanese  War, 
N.  Y.  1908,  p.  310;  Moore’s  Digest,  7;52i).  Destruction  was  permitted 
in  exceptional  cases  by  the  Japanese  Prize  Regulations  of  March  15,  1904, 
art.  91  (Takahashi,  op.  cit.  p.  788)  and  by  the  French  Naval  Instructions 
of  July  25,  1870,  (Snow  cases,  p.  577),  and  in  certain  cases  of  pressing 
necessity  in  the  rules  adopted  by  the  Institute  de  Droit  International. 
(Annuair  de  I’institut  de  droit  international,  6;2I3,  221,  1882-1883,  Moore’s 
Digest,  71526).  The  recent  (1915)  case  of  the  William  P.  Frye,  an 
American  vessel  destroyed  by  a German  cruiser,  was  settled  under  the 
Prussian  treaty  of  1799,  renewed  in  1828,  (art.  13,  Malloy,  p.  1490)  which 
requires  compensation  to  be  made  for  all  contraband  goods  destroyed. 


186 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[186 


prize  money  act  of  1862^^  provided  for  the  division  of  ransom 
money  in  the  same  manner  as  prize  money,  and  in  the  case  of 
Goodrich  vs.  Gordon^-  in  the  supreme  court  of  New  York,  ran- 
som bills  were  held  to  be  good  contracts  enforceable  in  court. 

(4)  The  sequestration  and  sale  of  prizes  in  neutral  ports 
are  practices  which  the  United  States  as  a neutral  permitted 
France  in  the  wars  following  the  French  Eevolution.^^  Since 
that  time  the  United  States  has  opposed  such  practices,  although 
according  to  treaties^^  and  international  law^^  it  has  permitted 
the  temporary  asylum  of  belligerent  warships  and  their  prizes. 

In  the  Hague  conventions  of  1907^®  special  provision  was 
made  for  the  sequestration  of  prizes  in  neutral  ports  pending  ad- 
judication in  the  belligerent’s  prize  court,  apparently  with  the 
hope  of  somewhat  limiting  the  necessity  of  destroying  prizes  at 
sea.  The  United  States  did  not  ratify  this  section,  thus  maintain- 
ing its  opposition  to  the  principle  of  sequestration  of  prizes, 
which  the  American  delegation  spoke  of  as  an  ‘ ‘ ancient  abuse.  ’ 
The  Naval  War  College  in  a discussion  of  the  subject  in  1908"* 
recommended  against  sequestration.  Nevertheless  the  United 
States  has  resorted  to  sequestration  in  wars  in  which  she  has  been 
a belligerent,  and  the  courts  have  not  hesitated  to  uphold  their 
jurisdiction  over  prizes  in  neutral  ports, as  well  as  over  prizes 

"^Act,  July  17,  1862,  12  stat.  600. 

^“Goodrich  vs.  Gordon,  15  Johns,  6,  (1818)  N.  Y, 

"^Moore’s  Digest,  7;935-938. 

■^Hreaties  with  France,  1778-1798,  art.  17,  Malloy,  p.  474;  1800-1809, 
art.  24,  p.  504;  Great  Britain,  1794-1807,  art,  25,  p.  604;  Prussia,  1785- 
1796,  art.  19,  p.  1483;  1799-1810,  revived  1828,  p.  1493;  Sweden,  1783-1799, 
revived  1816,  1827,  art.  17,  19,  p.  1732;  Tripoli,  1805,  art.  17,  p.  1792; 
Algiers,  1795-1815,  art.  10,  p.  3;  1815-1830,  art.  18,  p.  8;  Netherlands, 
1782-1795,  art.  5,  p.  1245. 

75Att.  Gen.  Cushing,  7 op.  122,  (1855),  Moore’s  Digest,  7;982-985. 
This  applies  at  least  to  war  vessels  and  their  prizes.  The  privilege  was 
often  denied  to  privateers.  See  Cushing,  7 op.  122,  (1855),  Moore’s  Di- 
gest, 7;546.  For  opinion  during  the  Revolutionary  war  see  Allen,  Naval 
History  of  the  American  Revolution,  i ;255-257,  274;  2;537-538. 

7®Hague  Conventions,  1907,  xiii,  art.  23, 

77Report  of  United  States  Delegation,  see  Naval  War  College,  Inter- 
national Law  Situations,  1908,  p.  76. 

■^^Naval  War  College,  International  Law  Situations,  1908,  pp.  58-78. 

79Jecker  vs.  Montgomery,  13  How.  512;  The  Arabella  and  The  Ma- 
deira, 2 Gall.  368;  Hudson  vs.  Guestier,  4 Cranch  293;  Naval  War  Col- 
lege, International  Law  Situations.  1908,  pp.  60-62. 


187] 


BELLIGERENT  AND  NEUTRALS 


187 


which  had  been  sold®®  or  destroyed.®^  The  sequestration  of  prizes 
in  neutral  ports  seems  to  be  permitted  to  naval  vessels  by  law 
of  the  United  States,  although  not  looked  upon  with  favor. 

(5)  Release  of  neutral  prizes  in  preference  to  destruction 
was  recommended  by  the  naval  war  college  in  a discussion  of 
1907,®^  but  this  course  would  probably  not  be  pursued  except  as 
a last  resort. 

The  permission  to  accept  ransom  and  sequestrate  vessels  in 
neutral  ports,  together  with  the  strict  injunction  to  bring  prizes 
in  for  adjudication  if  possible,  tends  to  prevent  injury  to  neutral 
owners.  The  permission  to  destroy  prizes,  however,  would  have 
an  opposite  effect.  The  criminal  penalties  provided  for  illegal 
treatment  of  prizes  as  well  as  the  rule  giving  action  for  damages 
in  such  cases  are  also  measures  directed  toward  the  duties  of  pre- 
vention encumbent  upon  the  country. 

ADJUDICATION  OF  PRIZES 

One  of  the  most  important  measures  taken  by  the  United 
States  to  prevent  infractions  of  neutral  rights  by  its  naval  forces, 
is  the  establishment  of  prize  courts  with  jurisdiction  over  all 
seizures  by  naval  vessels.  This  means  of  prevention  is  regarded 
as  so  essential  that  it  has  become  a rule  of  international  law.  The 
establishment  of  prize  courts  and  the  adjudication  of  prizes  are 
duties  which  international  law  requires  of  belligerent  states. 

(1)  In  a large- number  of  its  treaties®®  the  United  States  has 
reciprocally  agreed  as  a belligerent  to  adjudicate  prizes  seized 
from  the  other  contracting  party,  when  neutral,  in  its  prize  court, 

®®Williams  vs.  Amroyd,  7 Cranch  423. 

s^The  Edward  Barnard,  Blatch.  122;  The  Schooner  Zavalla,  Blatch. 
173.  See  Naval  War  Col.,  Int.  Law  Sit,  1908,  p.  63. 

®“Naval  War  College,  International  Law  Discussions,  1907,  p.  75. 
Release,  where  the  prize  can  not  be  brought  in  for  adjudication,  is  recom- 
mended by  Lawrence,  op.  cit,  p.  405;  Hall,  op.  cit.,  p.  763.  British  courts 
have  favored  this  rule  in  dicta,  see  The  Zee  Star,  4 Rob.  71 ; The  Felicity, 
2 Dods.  381 ; The  Leucade,  Spinks,  221,  Bentwich  157,  Moore’s  Digest,  7:522. 
Release  of  neutral  prizes  in  certain  cases  was  prescribed  in  the  Japanese 
prize  law  of  1894,  (art.  20,  22),  but  destruction  was  permitted  in  similar 
cases  by  the  law  of  1904,  art.  91.  See  S.  Takahashi,  International  Law 
applied  to  the  Russo-Japanese  War,  New  York,  1908,  pp.  333-788,  Moore’s 
Digest,  7:525. 

^^Adjudication  of  prizes  has  been  required  in  twenty  treaties  with 
fourteen  countries,  of  which  those  with  Bolivia  (1858,  art.  24,  Malloy,  p. 
121)  and  Colombia  (1846,  art.  24,  p.  309)  are  in  force. 


188  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [188 

and  to  furnish  a written  statement  of  the  reason  for  condemna- 
tion, on  request.  Statutes,®^  instructions  to  naval  forces®^  and 
numerous  decisions  of  prize  courts®®  have  also  insisted  on  the 
necessity  of  a legal  adjudication  of  prizes  before  passage  of  title 
or  complete  ousting  of  the  right  of  the  original  neutral  owner. 

The  United  States  has  also  recognized  the  duty  of  observing 
certain  limitations  in  the  establishment  of  its  prize  courts.  Al- 
though France  established  prize  courts  in  territory  of  the  United 
States  in  the  wars  following  the  French  revolution,  the  United 
States®^  never  acknowledged  its  right  to  do  so,  and  in  the  Hague 
conventions  of  1907®®  it  was  provided  that  prize  courts  should  not 
be  set  up  on  neutral  territory  or  on  a vessel  in  neutral  waters. 
The  courts  have  held  that  prize  courts  may  be  established  in  the 
country’s  jurisdiction  or  in  occupied  enemy  territory.®^ 

(2)  The  power  to  establish  a prize  court  of  appeal  was 
given  to  congress  in  the  Articles  of  Confederation  and  also  the 
power  to  ‘‘establish  rules  for  deciding  in  all  cases  what  captures 
on  land  or  water  shall  be  legal,  and  in  what  manner  prizes  taken 
by  land  or  naval  forces  in  the  service  of  the  United  States  shall 
be  divided  or  appropriated.”  The  court,  consisting  of  a commit- 
tee of  congress  established  under  this  authority  by  the  continen- 
tal congress,^®  had  simply  appellate  jurisdiction  over  state  courts 

®^Rev.  Stat.  sec,  4615-4617, 

^^Instructions,  June  20,  1898,  art.  20-23,  For,  Rel,  1898,  p.  781;  Moore’s 
Digest,  7;5i4;  Stockton’s  Naval  War  Code,  1900-1904,  art,  46-50, 

®®The  Dos  Hermanos,  2 Wheat,  76;  The  Pizarro,  2 Wheat,  227;  The 
Adventure,  8 Cranch  221,  (1814)  ; Grundy  Att,  Gen.,  3 op.  377,  (1838),  The 
Nassau,  4 Wall,  634;  Moore’s  Digest,  71623-631. 

8^See  Fenwick,  The  Neutrality  Laws  of  the  United  States,  p.  18.  At 
the  time  of  the  Revolutionary  war  it  was  common  to  take  prizes  into  neu- 
tral ports  where  they  were  adjudicated  by  the  local  courts  of  admiralty, 
although  it  was  even  then  regarded  as  an  act  approaching  a breach  of  neu- 
tral duty.  The  United  States  on  several  occasions  took  prizes  into  French 
and  Spanish  ports.  See  G.  W.  Allen,  A Naval  History  of  the  American 
Revolution,  N.  Y.,  1913,  i;255,274:  21537,538. 

®®Hague  Conventions,  1907,  xiii,  art.  4,  Malloy,  p,  2359. 

®^The  Grapeshot,  9 Wall.  129.  The  authority  of  the  president  as  com- 
mander in  chief  to  establish  prize  courts  in  conquered  territory  was  “up- 
held in  the  Grapeshot  but  denied  in  Jecker  vs.  Montgomery,  13  How.  498, 
which  held  that  Congress  alone  could  create  courts  with  a prize  jurisdic- 
tion. See  Moore’s  Digest,  7;585- 

90Articles  of  Confederation,  art..  9;  Resolution  of  Nov.  25,  1775,  sec. 
6,  Jour.  Cong.  1 1242,  Ford.  ed.  3;373-  See  note  on  these  courts  with  refer- 
ences, Scott  10.. 


189] 


BELLIGERENT  AND  NEUTRALS 


189 


of  admiralty,  the  establishment  of  which  with  a prize  jurisdiction 
was  recommended  to  the  colonial  legislatures  by  a resolution  of 
congress.®^ 

By  the  constitution  the  judicial  power  of  the  United  States  is 
declared  to  extend  over  ‘ ‘ all  cases  of  admiralty  and  maritime  ju- 
risdiction.” By  the  judiciary  act  of  1789  the  jurisdiction  of  the 
federal  courts  over  prizes  has  been  made  exclusive,®-  thereby 
barring  any  possible  jurisdiction  in  state  courts,  and  original 
jurisdiction  in  prize  causes  has  been  given  exclusively  to  federal 
district  courts,®^  thus  limiting  higher  federal  courts  including  the 
supreme  court  to  appellate  jurisdiction  in  such  cases.  The  prize 
jurisdiction  of  district  courts  is  complete,  including  all  matters 
relating  to  the  disposition  of  vessels  seized  jure  belli,  or  by  au- 
thority of  statutes  such  as  embargo,  non-intercourse  and  revenue 
acts.  The  admiralty  jurisdiction,  both  instance  and  prize,  exists 
constantly,  and  no  specific  commission  on  the  outbreak  of  war  is 
necessary  for  the  exercise  of  prize  jurisdiction;®^  thus  when  the 

^iResolution  of  Nov.  25,  1775,  sec.  4-6,  Jour.  Cong.  1 1242,  Ford.  cd. 
31373.  See  Moore’s  Digest,  7;585.  Before  the  passage  of  this  resolution, 
on  Nov.  I,  1775,  the  general  court  of  Massachusetts  had  established  prize 
courts,  the  first  ever  erected  by  an  independent  state  in  the  western  hem- 
isphere. See  Acts  and  Resolutions  of  Province  of  Massachusetts  Bay,  1886, 
5 ;436. 

9-Act.  Sept.  24,  1789,  I stat.  76,,  sec.  9;  rev.  stat.,  sec.  71 1,  cl.  3,  4; 
Judicial  code,  1911,  act  March  3,  1911,  36  stat.  1087,  sec.  256,  cl.  4.  The  ad- 
miralty jurisdiction  of  which  prize  jurisdiction  is  a part  was  held  to  be 
exclusive  in  federal  courts  in  The  Hine  vs.  Trevor,  4 Wall.  555;  The  Bel- 
fast, 7 Wall.  625. 

93Act  Sept.  24,  1789,  I stat.  76,  sec.  9;  rev.  stat.,  sec.  563,  cl.  8;  Judi- 
cial code  of  1911,  36  stat.  1087,  sec.  24,  cl.  3.  See  Ketland  vs.  The  Cassius, 
2 Dali.  365,  (1796). 

9^Prize  jurisdiction  may  have  been  originally  inherent  in  courts  of  ad- 
miralty in  England,  but  it  was  quite  early  recognized  as  distinct  from  the 
instance  jurisdiction  and  as  exercisable  only  under  special  commission, 
see  Lindo  vs.  Rodney,  2 Doug.  614,  (1781)  W.  S.  Holdsworth,  A History 
of  English  Law,  3 Vol.,  London,  1907,  i ;330.  By  the  naval  prize  act  of 
1864,  (27-28  Viet,  c 25,  sec.  4)  a permanent  prize  jurisdiction  was  given  to 
the  High  Court  of  admiralty,  which  was  vested  in  the  High  Court  by  the 
Judicature  act  of  1873,  (36-37  Viet.  c.  66,  sec.  4-18).  By  the  Prize  courts 
act  of  1894,  (57-58  Viet.  c.  39),  commissions  giving  a prize  jurisdiction 
to  vice-admiralty  courts  might  be  issued  in  time  of  peace  to  become  effect- 
ive by  the  outbreak  of  war.  See,  The  Earl  of  Halsbury,  ed..  The  Laws  of 
England,  27  vol.,  London,  1912,  23;285,  Pitt  Cobbett,  Cases  and  Opinions 
on  International  Law,  3rd.  ed.,  2 vols.,  London,  1909,  2;  190. 


190 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[190 


country  is  neutral  the  jurisdiction  may  be  exercised  over  vessels 
violating  neutrality,  and  in  times  of  peace  over  vessels  of  pirates 
and  unrecognized  insurgents  committing  depradations  against 
commerce.®® 

(3)  By  the  international  prize  court  convention  of  the  sec- 
ond Hague  conference,  ratification  of  which  with  an  amending 
protocol  was  recommended  by  the  senate  on  February  15,  1911,®® 
the  United  States  has  consented  to  submit  to  the  decision  of  the 
international  prize  court  in  certain  prize  cases  arising  in  wars  in 
which  all  of  the  belligerents  are  parties  to  the  convention.  By 
the  protocol®^  proposed  by  the  United  States  in  1910  on  account 
of  the  constitutional  impossibility  of  an  appellate  authority 
above  the  supreme  court,  it  is  provided  that  an  original  action 
for  damages  against  the  captors  may  be  brought  in  the  interna- 
tional prize  court.  Technically  therefore  in  the  case  of  the  United 
States  the  international  prize  court  would  not  have  jurisdiction 
to  determine  the  validity  of  the  title  to  prizes,  but  the  effect  of 
the  decision  would  be  the  same.  The  international  prize  court 
has  not  been  established  up  to  date. 

The  convention  provides  that  in  deciding  cases  the  court  is 
to  be  governed  by  treaties  if  any  bear  on  the  controversy,  by  in- 
ternational law  if  settled  or  in  the  absence  of  either  by  ‘ ‘ general 
principles  of  justice  and  equity.”  On  account  of  this  somewhat 
vague  description  of  the  law  to  be  applied  the  London  Naval 
Conference  of  1909  was  called  to  draw  up  a code  of  prize  law. 
Owing  to  the  failure  of  the  Declaration  of  London,  proposed  by 
this  conference  to  secure  general  ratification,  no  immediate  pros- 
pect of  the  establishment  of  the  court  is  in  view.®®  The  firm  es- 
tablishment of  such  an  international  court  would  undoubtedly  be 
a most  potent  agency  for  preventing  injury  to  neutral  persons 
by  belligerent  naval  forces. 

(4)  Prize  jurisdiction  is  ordinarily  exclusive  in  the  courts 
of  the  country  of  the  capturing  belligerent  power.®®  It  is  essen- 

^^Glass  vs.  The  Betsey,  3 Dali.  6,  (1794).  Supra  p.  33  et  seq.,  131 
et  seq. 

9®Hague  Conventions,  1907,  xii,  Charles,  Treaties,  1913,  p.  248. 

^^Charles,  Treaties,  1913,  p.  262. 

®®On  the  status  of  the  Declaration  of  London  in  1914  see  Editorial 
comment,  Am.  Jour.  Int.  Law,  9;i99,  Jan.  1915. 

^^LTnvincible,  i Wheat.  238,  261 ; The  Estrella,  4 Wheat.  298 ; U.  S. 
vs.  Peters,  3 Dali.  121,  (1795).  In  a number  of  treaties  to  which  the 
United  States  is  a party,  it  is  provided  that  prizes  of  either  party  when 
belligerent  shall  be  exempt  from  the  jurisdiction  of  the  other  when  tern- 


191] 


BELLIGERENT  AND  NEUTRALS 


191 


tially  a jurisdiction  in  rem,  extending  over  seizures  jure  belli 
from  neutrals  or  enemies  upon  the  high  seas  or  in  territorial  wa- 
ters within  the  admiralty  jurisdiction/®®  Actual  possession  of 
the  vessel  in  question,  however,  is  not  necessary.  The  jurisdic- 
tion may  be  exercised  over  a vessel  sequestrated  in  a neutral 
port,^®^  sold,^®^  ransomed,^®^  or  sunk,^®^  and  according  to  law  a de- 
cision must  be  given  in  all  of  these  cases  before  the  seizure  and 
disposition  of  the  prize  can  be  regarded  as  legitimate.  The  or- 
dinary case  is  where  the  vessel  has  been  brought  into  port  and 
has  been  put  according  to  a provision  of  statute  into  the  custody 
of  an  officer  of  the  court. 

Seizures  of  foreign  vessels  made  in  pursuance  of  local  regu- 
lations such  as  the  embargo  and  non-intercourse  acts  are  legiti- 
mate only  when  made  in  the  territorial  jurisdiction  of  the 
United  States,  but  subject  to  this  limitation  are  treated  in  the 
same  manner  as  prizes  jure  belli. ^®^  The  same  is  true  of  vessels 
violating  the  neutrality  of  the  United  States.  They  also  may  only 
be  seized  in  territorial  waters.^®®  The  seizure  of  pirate  ves- 
sels,^®’’ vessels  of  unrecognized  insurgents  committing  depreda- 
tions on  commerce^®®  and  vessels  engaged  in  acts  internationally 
condemned,  as  the  slave  trade/®®  is  permitted  on  the  high  seas 

porarily  taken  into  its  ports.  Supra,  p.  i86,  note  74.  For  exceptions  to  the 
exclusive  jurisdiction  of  the  captor  power’s  courts  over  prizes  see  Moore’s 
Digest,  7;592.  Supra,  p.  134  et  seq. 

^®®Schooner  Adeline,  9 Cranch  24^,  Speed,  Att.  Gen.,  ii  op,  445, 
(1866)  ; Note  on  prize  law,  i Wheat.  App.  II;  2 Wheat.  App.  I;  5 Wheat. 
App.  p.  52. 

loijecker  vs.  Montgomery,  13  How.  498;  The  Advocate,  Blatch.  142; 
The  Arrabella  and  the  Madiera,  2 Gall.  368. 

io2Wiiiiams  vs.  Amroyd,  7 Cranch  423,  (1819). 

io3Maissonaire  vs.  Keating,  2 Gall.  324,  337,  (1815)  ; Miller  vs.  The 
Resolution,  2 Dali,  i,  15,  (1781).  See  Moore’s  Digest,  7;533- 

i®4The  Edward  Barnard,  Blatch,  122;  The  Schooner  Zavalla,  Blatch, 
173.  See  also  Moore’s  Digest,  7;590. 

^®^Rose  vs.  Himeley,  4 Cranch,  241,  (1808)  ; Gelston  vs.  Hoyt,  3 Wheat. 

246. 

io®The  Estrella,  4 Wheat.  298,  (1819)  ; The  Alerta,  9 Cranch  359, 

(1815). 

lo^The  Ambrose  Light,  25  Fed.  Rep.  408,  (1885). 

’®®The  Three  Friends,  166  U.  S.  i,  (1897)  ; The  Ambrose  Light,  25 
Fed.  Rep.  408.  (1885). 

looGeneral  act  for  the  Repression  of  the  African  Slave  Trade,  1890, 
Malloy,  p.  1964.  In  the  Antelope,  10  Wheat.  66,  122,  (1825)  Chief  Justice 
Marshall  denied  the  legitimacy  of  seizures  for  slave  trading  beyond  ter- 
ritorial jurisdiction  in  the  absence  of  treaty. 


192 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[192 


by  countries  at  peace  and  in  such  cases  the  United  States  courts 
exercise  a prize  jurisdiction.  It  should  be  noted  that  statutes 
may  confer  a jurisdiction  over  seizures  on  the  high  seas  not 
recognized  or  permitted  by  international  law,  and  the  prize 
courts  are  bound  to  exercise  it.“® 

In  order  to  confer  a prize  jurisdiction  the  seizure  must  be 
on  the  high  seas  or  in  territorial  waters  within  the  admiralty 
jurisdiction.  Seizures  on  land  confer  no  prize  jurisdiction  in 
the  United  States.^^^ 

Although  prize  jurisdiction  is  essentially  a jurisdiction  in 
rem,  the  duty  of  the  court  being  to  settle  the  title  to  the  vessel 
itself  and  its  cargo,  yet  it  is  not  entirely  so.  Incidental  to  the 
disposition  of  the  prize,  claims  for  damages  may  arise,  and  it 
may  be  necessary  to  determine  the  rights  of  claimants  for 
freight,  liens,  insurance,  etc.  All  of  these  matters  come  within 
the  jurisdiction  of  prize  courts  of  the  United  States.^^^ 

(5)  The  functions  of  prize  courts  are  (a)  to  determine 
upon  the  legality  of  seizures,  (b)  to  determine  the  title  to  prizes 
and  (c)  to  dispose  of  the  proceeds  in  case  of  condemnation. 

By  their  authority  to  decide  whether  the  seizure  was  justi- 
fiable, and  in  case  it  was  without  probable  cause  to  decree  dam- 
ages against  the  naval  officers  making  it,  prize  courts  may  aid 
in  the  prevention  of  injury  to  neutral  persons  by  such  officers. 

In  determining  the  title  to  the  prize,  the  court  adjudicates 
the  respective  claims  of  the  belligerent  government  to  condem- 
nation and  the  neutral  owner  to  restitution.  It  thus  enforces 
the  duty  of  the  government  to  abstain  from  illegal  confiscation 
of  neutral  property.  In  disposing  of  the  proceeds  of  condemned 
prizes  the  court  may  further  prevent  infractions  of  neutral 
rights  by  naval  forces. 

The  law  applied  by  prize  courts  of  the  United  States  in 

Amy  Warwick,  2 Sprague  123;  Murray  vs.  The  Charming 
Betsey,  2 Cranch  64;  Talbot  vs.  Seaman,  i Cranch  i;  Moore’s  Digest, 
2;9i4.  In  the  absence  of  statute  the  jurisdiction  of  prize  courts  is  deter- 
mined by  international  law.  The  Schooner  Adeline,  9 Cranch  244,  Moore’s 
Digest,  7;599.  In  reference  to  British  claims  to  prize  jurisdiction  over 
extraterritorial  seizures  of  foreign  vessels  in  suppressing  the  slave  trade 
see  supra  p.  35. 

mBrown.  vs.  U.  S.,  8 Cranch  no,  (1814).  In  England  prize  courts 
were  given  jurisdiction  over  booty  seized  by  land  forces  by  statute  in 
1840,  3-4  Viet.  c.  55,  sec.  22;  Banda  and  Kirwee  Booty,  L.  R.  i Adm.  and 
Ecc.,  109,  (1866). 

ii^Moore’s  Digest,  7 ; 593-^3,  Infra  p.  193,  note  13. 


193] 


BELLIGERENT  AND  NEUTRALS 


193 


decreeing  distribution  of  the  proceeds  of  prizes  will  now  be 
considered. 

(6)  Claimants  to  proceeds  of  prizes  may  be  of  two  kinds, 
(1)  persons  with  equitable  claims  upon  the  vessel  by  contract 
or  ordinary  principles  of  the  law  of  admiralty,  such  as  claims 
for  freight,  liens,  insurance,  etc.  The  prize  courts  of  the  United 
States  have  in  general  recognized  the  validity  of  such  claims 
upon  neutral  prizes  and  their  jurisdiction  over  them;  conse- 
quently in  case  of  condemnation  of  the  vessel,  such  claims  have 
been  commonly  allowed  before  any  part  of  the  proceeds  is  de- 
creed to  the  government. (2)  Persons  with  claims  for  meri- 
torious service  in  capturing  the  vessel.  These  claims  may  be  of 
two  kinds,  (a)  where  the  vessel  is  condemned  to  the  capturing 

state,  and  (b)  where  a recaptured  vessel  is  restored  to  its 

original  neutral  or  citizen  owner.  In  the  first  case  the  claim 
is  for  prize  bounty  or  prize  money,  in  the  second  for  military 
salvage. 

(a)  It  is  a principle  firmly  established  in  Anglo-American 
jurisprudence,  if  not  universal,  that  prizes  legally  condemned 
enure  primarily  to  the  government.^^^ 

Societe,  g Cranch  209,  212,  (1815)  ; The  Antonia  Johanna,  i 
Wheat.  159,  (1816)  ; Schwartz  vs.  Insurance  Co.  of  No.  Am.  3 Wash.  C.  C. 
1 17.  In  the  case  of  enemy  prizes  the  opposite  rule  appears  to  prevail, 

that  capture  destroys  all  previous  claims.  See  The  Hampton,  5 Wall 

372;  The  Carlos  F.  Roses,  177  U.  S.  655;  The  Frances,  8 Cranch  418, 
(1814)  ; See  Moore’s  Digest,  7 ;6oo-6o3. 

ii'^This  principle  which  is  signified  by  the  phrase,  “Bello  parta  cedunt 
republicae,”  appears  to  have  been  recognized  by  the  Greeks  and  Romans. 
“Whatever  is  captured  from  the  enemy,  the  law  directs  to  be  public  prop- 
erty, so  that  not  only  private  persons  are  not  the  owners  of  it,  but  even 
the  general  is  not.  The  questor  takes  it,  sells  it  and  carries  the  money 
to  the  public  account.”  Cited  from  Dionysius  of  Halicarnassus  by  Gro- 
tius,  De  Jure  Belli  ac  Pacis,  (1625),  Whewell,  ed.,  3 vols.  Cambridge, 
3;  124.  See  also,  A.  S.  Hershey,  The  History  of  International  Relations 
during  Antiquity  and  the  Middle  Ages,  Am.  Jour.  Int.  Law,  5;9i5,  (1911)  ; 
Coleman  Philipson,  The  International  Law  and  Custom  of  Ancient  Greece 
and  Rome,  2 vols.,  London,  1911,  2 -,237,  381.  For  opinion  of  Grotius  on 
this  subject,  see  op.  cit.,  3;io5.  For  recognition  of  this  principle  in  Eng- 
land in  1342  A.  D.,  see  Rymer,  Foedera,  20  vol.,  London,  1704-1735,  1 1408; 
Robert  Phillimore,  Commentaries  on  International  Law,  3rd  ed.,  4 vols., 
London,  1885,  3;6oi;  T.  E.  Holland,  Principles  of  Jurisprudence,  nth 
ed.,  N.  Y.,  1910,  p.  212;  Alexander  vs.  Duke  of  Wellington,  2 Russ,  and 
Mylne  54,  (1831);  The  Elsebe,  5 Rob.  173,  (1804);  Banda  and  Kirwee 
Booty,  L.  R.  I Adm.  and  Ecc.  109,  (1866).  Recognition  of  this  principle 


194  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [194 

In  the  Revolutionary  war,  by  resolution  of  congress, 
prizes  were  given  to  the  captors  entirely  if  privateers,  and  one- 
third  to  one-half  if  public  vessels.  By  an  act  of  1800^^®  the 
whole  of  the  proceeds  of  prizes  captured  by  public  vessels  was 
decreed  to  the  captor  when  of  inferior  force  to  the  prize,  and 
one-half  the  proceeds  when  of  superior  force.  The  act  also  pro- 
vided for  distribution  among  the  vessels  within  sight  as  joint 
captors,  and  among  the  officers  and  men  of  the  vessels.  The 
whole  of  prize  proceeds  was  given  to  privateers  and  by  an  act 
of  1812“^  distribution  was  decreed  to  be  according  to  contract 
between  owners  and  crew  or  in  the  absence  of  contract  one-half 
to  each.  The  provisions  of  the  act  of  1800  were  practically 
repeated  in  acts  passed  during  the  Civil  war^^®  which  applied 

in  the  United  States,  U.  S.  vs.  The  Schooner  Peggy,  i Cranch  103 ; The 
Siren,  13  Wall.  389;  Porter  vs.  U.  S.  106  U.  S.  607;  Commodore  Stew- 
art’s case  I,  Ct.  Cl.  113,  Scott,  910;  The  Nuestra  Senora  de  Regia,  108  U.  S. 
92,  loi,  (1882)  ; The  Manila  Prize  Cases,  188  U.  S.  254.  In  the  Palmyra, 
12  Wheat.  I,  the  court  held  that  all  proceedings  for  condemnation  upon 
captures  should  be  in  the  name  of  the  United  States.  Before  the  aboli- 
tion of  prize  money  the  courts  frequently  referred  to  the  vesting  of  prize 
in  “captors”  in  an  ambiguous  manner  which  made  it  appear  that  title  was 
transferred  immediately  from  the  original  owner  to  the  naval  force  which 
made  the  capture.  (The  Mary  and  Susan,  i Wheat.  46).  The  difficulty 
comes  through  the  equivocal  use  of  the  word  “captors”  to  mean  either  the 
capturing  state  or  the  individuals  of  the  capturing  naval  force.  When 
the  question  has  come  up  directly  the  court  has  invariably  held  that  con- 
demnation is  always  to  the  government  and  the  actual  captors  only  have 
rights  by  reason  of  explicit  grant  by  the  government.  Thus  an  article  in 
the  French  treaty  of  1800  (art.  4,  Malloy,  p.  497),  providing  for  the  resto- 
ration of  prizes  not  definitely  condemned,  but  legally  captured,  was  held 
to  violate  no  vested  rights  of  the  captors,  (U.  S.  vs.  the  Schooner  Peggy, 
I Cranch  103,  Lincoln  Att.  Gen.  i op.  iii),  and  during  the  Spanish  war  of 
1898  the  president  released  several  captured  vessels  before  adjudication 
without  compensation  to  the  captors  for  their  loss  of  prize  money, 
(Moore’s  Digest,  71505;  The  Manila  Prize  Cases,  188  U.  S.  254). 

iisResolution  of  Congress,  Nov.  25,  1775,  Journal  of  Cong,  i *,242, 
Ford,  ed,  3:373.  See  Moore’s  Digest,  7:264.  Henderson  vs.  Clarkson, 
Supreme  court  of  Pa.,  2 Dali.  174.  (1792)  ; Keane  vs.  the  Brig  Glouces- 
ter, 2 Dali.  36,  (1782),  Fed.  Court  of  Appeals. 

ii®Act.  Apr.  23,  1800,  2 stat.  52,  sec.  5-7,  see  Upton,  op.  cit.  p.  484. 

ii^Act.  June  26,  1812,  2 stat.  760,  sec.  4;  June  27,  1813,  2 stat.  793,  See 
Upton,  op.  cit.,  p.  485. 

ii®Act  March  25,  1862,  12  stat.  375;  July  17,  1862,  12  stat.  600;  June 
30,  1864,  13  stat.  306,  314,  Rev.  Stat.,  sec.  4630,  4632,  4635,  4642,  4652, 
Upton,  op.  cit,  p.  489. 


195] 


BELLIGERENT  AND  NEUTRALS 


195 


to  both  vessels  of  the  navy  and  “not  of  the  navy”.  Provision 
was  also  made  for  the  payment  of  prize  bounty  of  $100  for  each 
man  on  board  an  enemy  warship  sunk  or  destroyed  in  battle 
if  of  inferior  force  to  the  attacking  United  States  vessel  and 
$200  if  of  superior  force.  Ransom  money,  salvage,  and  prize 
bounty  were  all  to  be  distributed  in  the  same  proportions  as 
prize  money.  There  have  been  numerous  special  acts  by  con- 
gress giving  prize  money  in  particular  cases  where  the  prize 
was  sunk  or  recaptured,  and  consequently  no  claim  could  be 
prosecuted  under  the  general  law.^^^ 

The  courts  have  held  that  as  the  statutes  make  no  provi- 
sion for  prize  money  in  case  of  capture  by  land  forces  or  jointly 
by  land  and  naval  forces,  in  such  cases  the  entire  proceeds  enure 
to  the  government.^-®  While  non-commissioned  captors  are 
legally  entitled  to  no  prize  money,  “it  has  been  the  practice  to 
compensate  gratuitous  enterprise,  courage  and  patriotism,  by 
assigning  the  captors  a part  and  sometimes  the  whole  of  prize” 
according  to  Attorney  General  Wirt.^^^  By  an  act  of  March  3, 
1899^^2  all  provisions  granting  prize  money  and  prize  bounty 
were  repealed;  thus  the  entire  proceeds  of  prize  now  enure  to 
the  government,  and  are  according  to  the  act  of  1862^^^  to  be 
used  as  a permanent  naval  pension  fund. 

(b)  In  early  treaties  with  the  Netherlands,  Sweden  and 
Prussia^-^  it  was  reciprocally  agreed  that  where  either  of  the 
contracting  parties  recaptured  a vessel  of  the  other  before 
twenty-four  hours  enemy  possession,  the  vessel  should  be  re- 
stored with  one-third  salvage  to  privateers  and  one-thirtieth  to 
public  vessels.  If  the  enemy  had  had  possession  more  than 
twenty-four  hours,  privateers  were  permitted  to  retain  the  en- 

ii^Special  acts  granting  prize  money,  Victory  on  Lake  Erie,  3 stat. 
130;  Case  of  Algerine  vessels,  3 stat.  315;  Crew  of  Brig  Transfer,  3 stat. 
480 ; Crew  of  the  Black  Snake,  4 stat.  23 ; Crew  of  the  Bon  Homme 
Richard  and  the  Alliance,  5 stat.  158;  Crew  of  the  Wasp,  3 stat.  295. 

i20The  Siren,  13  Wall.  389;  The  Nuestra  Senora  de  Regia,  108  U.  S. 
92,  loi,  (1882). 

i2iwirt,  Att.  Gen.,  i op.  463,  (1821).  See  The  Dos  Hermanos,  2 
Wheat.  77.  Decisions  involving  prize  money  distribution  in  the  Spanish 
War,  Dewey  vs.  U.  S.,  178  U.  S.  510;  The  Manila  Prize  Cases,  188  U.  S. 
254;  The  Mangrove  Prize  Money,  188  U.  S.  720. 
i22Act  March  3,  1899,  30  stat.  1004,  1007. 
i23Act  July  17,  1862,  12  stat.  600,  sec.  ii. 

i24Treaties  with  Netherlands,  1782-1795,  Malloy,  p.  1243;  Sweden, 
1783-1798,  revived  1816,  1827,  art.  17,  18,  p.  1730;  Prussia,  1785-1786,  art. 
17,  21 ; 1799-1810,  art.  17,  21,  pp.  1482,  1492. 


196 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[196 


tire  proceeds  while  with  public  vessels  the  prize  should  be 
restored  with  one-tenth  salvage.  A statute  of  1800,^^®  substan- 
tially embodied  in  the  revised  statutes  of  1878,  decrees  salvage 
of  one-eighth  to  the  recaptors  upon  restoration  of  vessels  to  the 
original  owner.  The  principle  upon  which  restoration  or  con- 
demnation is  decreed  in  cases  of  recaptured  vessels  has  been 
considered  under  obligations  of  abstention.^-® 

The  methods  adopted  for  enforcing  the  obligations  of  naval 
forces,  have  been  (1)  punishment  by  court  martial  for  violation 
of  articles  for  the  government  of  the  navy,  (2)  assessment  of 
damages  by  prize  courts,  (3)  forfeiture  of  prize  money.  In 
addition  to  these  legal  methods  of  control  the  conduct  of  naval 
forces  can  be  and  is  ordinarily  controlled  by  executive  action 
exercisable  by  the  president  as  commander  in  chief  and  subor- 
dinate naval  officers  with  delegated  authority.  The  abolition  of 
prize  money  has  also  been  a measure  tending  toward  the  pro- 
tection of  neutral  rights.  The  abolition  of  privateering  with 
the  stimulus  which  it  gave  toward  disregard  for  the  rights  of 
merchantmen,  by  offering  chances  for  personal  gain,  has  called 
attention  to  the  fact  that  prize  money  created  a similar  situa- 
tion in  the  navy  itself.  There  can  be  no  doubt  but  that  the 
quest  of  prize  money  acts  as  an  incentive  to  the  making  of 
unjustifiable  seizures,^-^  and  when  it  was  allowed  its  forfeiture 
in  case  of  unwarranted  seizures  was  used  as  a means  of  enforc- 
ing observance  of  neutral  rights  among  naval  vessels.  By  the 
abolition  of  prize  money  and  prize  bounty  the  incentive  toward 
illegal  captures  has  been  removed  and  the  movement  in  the 
direction  started  by  the  abolition  of  privateering  continued. 

In  the  second  Hague  Conference  of  1907,  a proposal  was 
made  to  abolish  prize  money,^-*  which  was  still  given  by  all 
nations  except  the  United  States  and  Japan.  It  was  not  ac- 
cepted, even  the  United  States  voting  against  it  on  the  ground 

i25Act  March  3,  1800,  2 stat.  16.  The  Act  June  30,  1864,  13  stat.  306, 
314,  Rev.  Stat.  sec.  4652,  leaves  the  determination  of  the  amount  of  sal- 
vage to  the  court. 

i-®Supra,  pp.  169  et  seq. 

i27See  Article  by  C.  C.  Binney,  The  latest  chapter  of  the  American 
Law  of  Prize  and  Capture,  Am.  Law  Reg.,  Sept.  1906,  and  Editorial 
Comment,  Am.  Jour.  Int.  Law,  1907,  i ’,484. 

i28Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Docu- 
ments, 3 vols..  The  Hague,  1907,  3;ii48.  English  translation  of  this  pro- 
posal, J.  Westlake,  International  Law,  2 vols.,  Cambridge,  1910,  21313. 
Discussion  of  the  “voeu”  which  was  proposed  by  the  French  delegation, 
in  the  Acts  knd  Documents,  3 1792,  809,  842,  845,  906,  909. 


197] 


BELLIGERENT  AND  NEUTRALS 


197 


that  the  matter  was  a subject  proper  for  local  regulation  and 
that  it  was  not  desirable  to  take  emphasis  from  the  broader 
question  of  abolishing  the  right  to  capture  private  property  at 
sea  which  the  United  States  was  advocating.  In  the  present 
war,  Great  Britain  has  by  order  in  council  abolished  prize 
money, and  it  seems  probable  that  in  course  of  time  it  will 
be  acted  on  internationally  as  was  done  in  the  case  of 
privateering. 

i^sQrder  in  Council,  Aug.  28,  1914,  abolished  prize  money  and  estab- 
lished a prize  fund  to  be  divided  among  the  whole  navy  at  the  end  of 
the  war.  See  Norman  Bentwich,  International  Law  as  applied  by  Eng- 
land in  the  War,  Am.  Jour.  Int.  Law,  Jan.  1915. 


PART  IV.  OBLIGATIONS  AS  A BELLIGERENT 
TOWARD  ENEMIES 

CHAPTER  XIII.  INTRODUCTORY 

In  their  dealings  with  neutral  states,  the  rights  of  belligerent 
states  are  much  in  excess  of  the  ordinary  rights  of  states  at 
peace.  This  is  even  more  true  in  their  dealings  with  enemies. 
The  recognized  rights  of  a belligerent  against  its  enemy  are  so 
great  that  it  sometimes  seems  impossible  to  define  their  limits  at 
all.  Yet  the  establishment  of  these  limits  is  the  purpose  of  the 
law  of  war.  As  soon  as  we  recognize  the  existence  of  such  limits 
to  legal  rights,  we  recognize  the  legal  obligations  not  to  exceed 
them.  It  is  therefore  possible  to  speak  of  the  obligations  of  a bel- 
ligerent to  its  enemy. 

The  obligations  of  states  have  been  classified  under  the  five 
heads,  (1)  abstention,  (2)  acquiescence,  (3)  prevention,  (4)  vin- 
dication, (5),  reparation. 

(1)  Obligations  of  abstention  can  be  made  effective,  for  the 
most  part,  only  by  act  of  the  sovereign  authority  of  the  state.  In 
so  far  as  this  is  true,  municipal  law  can  have  no  effect  in  their 
enforcement.  As  in  the  case  of  obligations  of  belligerents  toward 
neutrals,  the  practice  of  prize  courts  does  furnish  a check  upon 
the  infraction  of  some  of  these  duties.  By  legally  adjudicating 
enemy  property  captured  at  sea  according  to  the  rules  of  inter- 
national law,  prize  courts  interpose  between  their  own  govern- 
ment and  the  enemy  owner  of  the  prize,  thus  compelling  obser- 
vance of  the  belligerent  duty  to  abstain  from  confiscation  of  ene- 
my property  declared  immune  by  international  law.  In  this  case, 
therefore,  municipal  law  may  aid  in  the  enforcement  of  the  bel- 
ligerent’s obligations  of  abstention. 

(2)  Acquiescence  seems  to  be  contradictory  to  the  very  na- 
ture of  war.  Non-acquiescence,  the  effort  to  overcome,  appears  to 
be  the  very  essence  of  the  relationship  between  belligerents.  This  is 
true  so  far  as  the  belligerent  state  itself  is  concerned,  but  the  duty 
of  acquiescence  is  recognized  as  obligatory  upon  the  non-combat- 
ant inhabitants  of  occupied  territory.  This  duty  obviously  can 

198 


199] 


BELLIGERENT  AND  ENEMIES 


199 


not  be  enforced  by  the  belligerent  state  claiming  de  jure  sover- 
eignty of  the  territory,  but  by  the  occupying  belligerent  who  has 
de  facto  sovereignty.  The  law  of  the  United  States  does,  how- 
ever, recognize  the  duty,  in  that  it  enforces  ordinary  commercial 
acts  of  individuals,  not  of  direct  aid  to  the  enemy,  which  were 
performed  in  pursuance  of  this  duty  of  acquiescence,  even  when 
contrary  to  the  law  of  the  United  States.^  This  duty,  however, 
relates  to  the  general  subject  of  the  succession  of  states  and  the 
rights  of  inhabitants  of  transferred  territory  which  is  considered 
in  the  chapters  dealing  with  obligations  in  time  of  peace. “ 

(3)  The  obligations  of  prevention  require  a state  to  prevent 
certain  acts  by  its  officers  of  government  and  the  inhabitants  of 
its  territory  which  would  amount  to  infractions  of  international 
law.  It  is  by  enforcing  these  duties  that  municipal  law  can  be 
most  effective  in  enforcing  international  obligations.  The  bellig- 
erent state  comes  in  contact  with  its  enemy  largely  through  its 
army  and  navy.  Through  municipal  regulations  preventing  in- 
fractions of  international  law  by  such  agencies,  this  obligation  of 
international  law  may  be  made  effective. 

(4)  Vindication,  however,  is  foreign  to  the  law  of  war.  In- 
ternational law  does  not  put  a belligerent  under  an  obligation  to 
vindicate  illegal  acts  by  its  enemy.  It  does,  however,  give  him  a 
right  to  retaliate  to  a limited  extent.  Retaliation  is  a right  to 
vindicate,  not  a duty.  • The  belligerent  is,  however,  under  an  obli- 
gation not  to  carry  retaliation  beyond  a certain  limit.®  The  limit 
is  not  fixed  or  enforceable  by  any  authority.  The  legitimacy  of 
any  particular  measure  of  retaliation  is  left  to  the  discretion  of 
the  sovereign.  Municipal  law  can  not  control  it.^ 

(5)  Reparation  should  also  theoretically  be  a duty  of  bellig- 
erents. Individuals  of  either  belligerent  state  ought  to  be  able  to 
recover  compensation  for  injuries  due  to  illegal  acts  of  the  enemy 
state.  In  practice  such  a condition  is  impossible.  The  victor  will 

^Thorington  vs.  Smith,  8 Wall,  i,  (i868). 

-Supra,  pp.  62-63. 

^The  right  of  retaliation  is  recognized  in  Lieber’s  Instructions,  art. 
27,  28. 

•*It  should  be  said,  however,  that  there  has  been  authority  in  British 
prize  court  decisions  for  the  view  that  courts  may  refuse  to  recognize 
retaliatory  measures  of  their  own  government  so  far  as  they  injuriously 
affect  neutrals.  See  The  Recovery,  6 Rob.  348,  (1807)  ; The  Minerva, 
(1807)  Life  of  Sir  J.  Mackintosh,  1:317;  Phillimore,  Int.  Law,  3;  section 
436;  Holland,  Studies  in  Int.  Law,  pp.  197-198. 


200  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [200 

gain  full  reparation  in  the  treaty  of  peace,  but  there  is  no  legal 
recourse  for  the  loser.  The  treaty  of  peace  definitively  settles 
the  matter,  and  its  terms  are  fixed  according  to  policy  and  the 
result  of  the  conflict.  There  have,  however,  been  treaties  requir- 
ing each  party  to  indemnify  the  other  for  the  care  of  its  prison- 
ers of  war,  specifically  stating  that  this  indemnity  shall  be  con- 
sidered entirely  apart  from  general  indemnities  demanded  by  the 
conqueror.  The  Hague  conventions  also  require  compensation 
for  breaches  of  the  law  of  war.^  So  far  as  such  treaties  are  en- 
forceable by  municipal  law,  and  so  far  as  enemy  individuals  are 
assisted  by  municipal  law  in  obtaining  indemnity  for  injuries, 
the  general  rules  of  the  subject  of  reparation  considered  under 
the  law  of  peace  will  apply. 

We  shall  therefore  consider  the  duties  of  belligerents  toward 
their  enemies  under  the  two  heads,  (1)  obligations  of  abstention, 
and  (2)  obligations  of  prevention.  In  the  enforcement  of  the 
former  class  of  duties,  municipal  law  enforces  international  law 
directly.  The  rules  of  municipal  law  bearing  on  this  point  are 
therefore  rules  of  international  law  at  the  same  time.  In  the  sec- 
ond case,  the  means  employed  for  controlling  the  conduct  of  per- 
sons and  officers  are  a matter  left  to  the  discretion  of  the  govern- 
ments. International  law  does  not  say  how  individuals  shall  be 
controlled,  only  what  they  must  be  prevented  from  doing.  The 
municipal  law  in  this  class  will  therefore  consist  largely  of  rules 
supplementary  to  international  law. 

^Treaties  with  Prussia,  1785-1796,  art.  24,  Malloy,  p.  1484;  1799-1810, 
revived  1828,  art.  24,  p,  1494;  Mexico,  1848,  art.  22,  p.  1118;  Hague 
Conventions,  1907,  iv,  art.  3. 


CHAPTER  XIV.  OBLIGATONS  OF  ABSTENTION 


INTRODUCTORY 

A belligerent  state  is  bound  to  abstain  from  certain  acts 
toward  its  enemy.  Thus  it  must  abstain  from  committing  hostil- 
ities until  formal  warning  of  war,  from  the  confiscation  of  pub- 
lic or  private  debts,  from  committing  acts  of  hostility  against 
enemy  persons  domiciled  in  its  territory,  from  resorting  to  for- 
bidden methods  of  warfare,  from  the  inhuman  treatment  of 
prisoners  of  war,  from  the  unnecessary  injury  of  non-combat- 
ants, from  injuring  the  sick  and  wounded  and  those  caring  for 
them,  and  from  injuring  scientific,  religious  and  artistic  institu- 
tions.^ These  duties,  however,  are  obligatory  upon  the  sover- 
eignty of  the  state.  They  are  beyond  the  province  of  municipal 
law  to  control,  so  far  as  they  are  duties  of  abstention.  Thus 
courts  have  held^  that  the  commencement  of  war  is  a political 
act  and  they  can  not  question  the  legitimacy  of  belligerent  meas- 
ures when  the  political  department  of  government  has  recog- 
nized the  existence  of  the  status.  Thus  the  Hague  convention  re- 
lating to  the  opening  of  hostilities  must  be  regarded  as  directory 
solely  upon  the  political  department  of  government. 

The  courts  also  have  held”^  that  the  sovereign  may  confiscate 
debts  and  if  it  does  so  unequivocally  the  courts  can  offer  no  re- 
course to  the  mulcted  enemy  person.  This  statement,  however, 
is  subject  to  limitation.  Unequivocal  confiscations  of  the  sover- 
eign are  undoubtedly  valid  in  municipal  law.  Confiscations  by 
particular  agencies  of  government  may  not  be.  Thus  during  the 
Revolutionary  war  the  confiscations  by  the  individual  common- 
wealths were  declared  void  where  they  conflicted  with  treaty  pro- 
visions."* The  enforcement  of  the  duty  as  against  inferior  agen- 

^Hague  Conventions,  1907,  iii,  iv,  vi,  Malloy  Treaties,  pp.  2259,  2269, 
2304. 

-The  Prize  Cases,  2 Black  635. 

^B'rown  vs.  U.  S.,  8 Cranch  no,  (1814);  Ware  vs.  Hylton,  3 Dali. 

199,  (1796). 

^Ware  vs.  Hylton,  3 Dali.  199,  (1796).  See  treaty  with  Great  Brit- 
ain, 1783,  art.  4-6,  Malloy,  p.  588.  The  United  States  has  concluded 
twenty  treaties  with  fifteen  countries,  six  of  which  are  now  in  force 
(1915)  forbidding  confiscation  of  public  or  private  debts  due  enemy 
persons  during  war. 


201 


202  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [202 

cies  of  government,  however,  should  be  classified  under  duties  of 
prevention  rather  than  of  abstention. 

By  a large  number  of  treaties^  the  United  States  has  recog- 
nized its  duty  to  protect  enemy  persons  domiciled  in  its  terri- 
tory and  to  permit  them  a certain  time  to  wind  up  their  affairs 
and  leave.  These  treaties  also  are  addressed  primarily  to  the  po- 
litical department  of  the  government.  A sovereign  act  impris- 
oning domiciled  enemies  could  not  be  controlled  by  municipal 
law.  As  in  the  case  of  confiscation,  however,  municipal  law  can 
enforce  such  treaties  by  preventing  their  infraction  by  inferior 
agencies  of  government. 

By  its  adhesion  to  the  Hague  and  Geneva  conventions  the 
United  States  has  recognized  its  duty  to  abstain  from  forbidden 
methods  of  warfare,  from  the  inhuman  treatment  of  prisoners  of 
war,  from  unnecessary  injury  to  non-combatants  and  from  in- 
jury to  red  cross  agencies  and  to  the  sick  and  wounded  in  their 
care.  So  far  as  they  are  duties  of  abstention,  these  matters  are 
addressed  to  the  political  department  of  government,  but  they 
may  be  indirectly  enforced  by  the  control,  through  municipal 
law,  of  the  armed  forces  of  the  government,  and  will  be  consid- 
ered under  obligations  of  prevention. 

In  the  enforcement  of  prize  law,  however,  the  obligation  of 
the  belligerent  state  to  observe  certain  restraints  in  the  capture 
of  enemy  property  at  sea  is  enforced  through  municipal  law  di- 
rectly against  the  government.  The  principle  observed  by  the 
United  States  prize  courts  and  other  rules  of  municipal  law  bear- 
ing on  this  point  will  therefore  concern  us  at  this  point.  In  at 
least  one  case,  also,  judicial  methods  have  been  provided  for  the 
protection  of  enemy  private  property  on  land.  This  case  merits 
brief  consideration. 

ENEMY  PRIVATE  PROPERTY  AT  SEA 

The  general  right  of  capturing  enemy  property  at  sea  is  rec- 
ognized by  international  law  but  there  are  specified  cases  in  which 
the  belligerent  must  abstain  from  such  captures.  The  enforce- 

^Protection  to  resident  enemy  persons  has  been  guaranteed  in  twenty- 
seven  treaties  with  twenty-three  countries,  of  which  the  following  are 
now  (1915)  in  force:  Argentine  Republic,  1853,  art.  12,  Malloy,  p.  24;  Bo- 
livia, 1858,  art.  II,  p.  122;  Columbia,  1846,  art.  27,  p.  310;  Costa  Rica,  1851, 
art.  II,  p.  345;  Honduras,  1846,  art.  ii,  p.  956;  Italy,  1871,  art.  21,  p.  975; 
Mexico,  1848,  art.  22,  p.  1117;  Paraguay,  1859,  art.  13,  p.  368;  Prussia, 
1799-1810,  revived  1828,  art.  23,  p.  1494;  Sweden,  1783-1798,  revived  1816, 
1827,  art.  22,  p.  1732. 


203] 


BELLIGERENT  AND  ENEMIES 


203 


ment  of  this  duty  is  provided  for  by  the  rule  recognized  in  the 
United  States  whereby  all  prizes,  enemy  as  well  as  neutral,  are 
submitted  to  prize  courts  before  final  appropriation.  The  gen- 
eral principles  of  prize  court  jurisdiction  and  procedure  have 
been  discussed  under  the  law  of  neutrality®  and  it  should  again 
be  emphasized  that  the  whole  institution  of  prize  courts  is  pri- 
marily intended  for  the  benefit  of  neutrals.  Enemies  benefit 
from  them  only  incidentally.  The  rules  applied  in  distinguish- 
ing enemy  and  neutral  property  and  vessels  has  also  been  dis- 
cussed as  has  the  attitude  of  the  United  States  on  the  question 
of  total  immunity  of  enemy  private  property  from  seizure  during 
war.’’ 

In  the  case  of  neutral  vessels  and  goods,  immunity  from  cap- 
ture is  the  general  rule.  Capture  can  only  be  justified  in  certain 
exceptional  cases,  as  breach  of  blockade,  carriage  of  contraband, 
unneutral  service,  constructive  enemy  character,  or  necessity. 
With  enemy  property  and  vessels  the  case  is  reversed.  Here  the 
rule  is  liability  to  capture.  Cases  of  immunity  are  exceptional. 
Under  the  two  treaties®  which  the  United  States  has  concluded, 
insuring  the  total  immunity  of  enemy  private  property  during 
war,  this  would  not  be  true,  and  if  this  principle  were  adopted 
as  a general  rule,  a condition  which  the  United  States  has  advo- 
cated since  the  foundation  of  the  Republic  and  notably  at  the 
second  Hague  conference,  enemy  private  property  and  merchant 
vessels  at  sea  would  be  in  practically  the  same  condition  as  neu- 
tral vessels  and  property  are  today.  This  condition,  however, 
does  not  exist,  and  by  international  law  cases  in  which  enemy 
property  at  sea  is  immune,  are  exceptions  to  the  general  rule 
of  liability. 

The  cases  in  which  enemy  property  at  sea  is  immune  from 
capture  are  defined  in  the  Declaration  of  Paris  and  the  Hague 
conventions  and  may  be  classified  as  (1)  vessels  in  port  on  the 
outbreak  of  war,  (2)  vessels  leaving  their  last  port  before  the  out- 
break of  war,  (3)  postal  correspondence,  (4)  coast  fishing  ves- 
sels, (5)  enemy  property  under  the  neutral  fiag,  (6)  ‘‘vessels 
charged  with  a religious,  scientific  or  philanthropic  mission,”  (7) 
hospital  ships  bearing  the  red  cross  flag  when  they  are  commis- 
sioned and  authorized  by  the  belligerent  government.  In  the 

®Supra  p.  187  et  seq. 

■^Supra,  pp.  158,  166. 

*Treaties  with  Prussia,  1785-1799,  art.  23,  Malloy,  p.  1484;  Italy,  1871, 
art.  12,  p.  973. 


204  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [204 

last  two  cases  public  as  well  as  private  owned  vessels  are  immune 
from  capture.® 

The  immunities  granted  in  these  cases  were  provided  for  in 
Stockton’s  Naval  War  code  of  1900  to  1904.^®  In  the  proclama- 
tion and  instructions^  on  the  outbreak  of  the  Spanish  war,  days 
of  grace  on  departure  with  immunity  until  they  reached  a home 
port  were  granted  to  enemy  vessels,  and  the  immunity  of  vessels 
bound  for  the  United  States  which  left  their  last  port  before  the 
outbreak  of  war  was  also  prescribed,  the  rule  being  applied  in 
several  cases.^^  In  the  case  of  the  Paquete  Habana,^^  arising 
during  the  Spanish  war,  the  court  held  that  coast  fishing  vessels 
of  the  enemy  were  not  liable  to  capture,  before  the  enunciation  of 
this  doctrine  by  any  international  convention. 

The  immunity  of  enemy  property  under  the  neutral  fiag  is 
a doctrine  which  has  been  supported  by  the  political  department 
of  the  government  since  its  foundation,  but  not  given  legal  recog- 
nition until  the  war  of  1898,  when  the  president’s  proclamation 
required  adhesion  to  the  rules  of  the  Declaration  of  Paris  in  this 
respect.^^  In  many  of  the  early  treaties  the  doctrine  of  “free 
ships,  free  goods”  had  been  specified  as  binding  between  the  con- 
tracting parties.^'^ 

Although  there  have  not  been  a great  many  cases  before  the 
prize  courts  in  which  these  immunities  have  been  applied,  in  the 
few  cases  that  have  come  up  the  court  has  followed  the  rules 
laid  down  in  treaties  and  executive  orders.  The  general  principle 
requiring  the  adjudication  of  all  prizes  operates  as  a guarantee 
to  the  enforcement  of  this  duty  of  abstention. 

®See  Hague  Conventions,  1907,  x,  arts.  1-3,  vi,  xi. 

loStockton’s  Naval  War  Code,  1900-1904,  arts.  13-15,  21-22. 

^Proclamation,  Apr.  26,  1898,  30  stat.  1770;  Instructions,  June  20, 
1898,  art.  7,  For.  Rel.  1898,  780. 

i^The  Buena  Ventura,  175  U.  S.  384,  was  released  under  the  procla- 
mation. The  Panama,  176,  U.  S.  535,  although  in  the  terms  of  the  ex- 
emption, was  condemned  as  an  armed  vessel  forming  part  of  the  enemy 
auxiliary  navy,  a case  provided  for  in  the  proclamation.  The  Pedro,  175 
U.  S.  354,  although  her  ultimate  destination  was  the  United  States,  was 
condemned  because  her  immediate  voyage  was  to  an  enemy  port.  The 
doctrine  of  continuous  voyage  was  here  denied,  where  it  would  have 
operated  to  the  advantage  of  an  enemy  vessel.  Four  justices  dissented 
from  this  opinion  but  it  was  followed  by  the  court  in  the  case  of  the  Guido, 
175  U.  S.  382.  See  Moore’s  Digest,  7 ;453-9- 

i3The  Paquete  Habana,  175  U.  S.  677,  (1899). 

1-^  Proclamation,  Apr.  26,  1898,  30  stat.  1770. 

i^This  principle  has  been  embodied  in  thirty-one  treaties,  with  twenty- 
one  countries.  Seven  are  now  (1915)  force.  Supra  p.  164,  note  106. 


205] 


BELLIGERENT  AND  ENEMIES 


205 


Were  the  international  prize  court  established  as  provided  by 
the  Hague  conventions  of  1907,  cases  involving  these  immunities 
would  all  be  subject  to  its  jurisdiction.^®  By  its  signature  of  this 
convention  and  its  consent  to  its  ratification,  the  United  States 
signified  its  willingness  to  add  this  further  sanction  to  the  en- 
forcement of  these  duties. 

ENEMY  PRIVATE  PROPERTY  ON  LAND 

According  to  international  law,  enemy  private  property  on 
land  is  exempt  from  capture. Consequently,  the  government  is 
under  an  obligation  to  abstain  from  such  captures.  Exceptions 
to  this  rule  are  recognized  in  the  case  of  necessity,  which  justifies 
military  requisitions.  The  expense  of  adminstering  territory 
under  military  government  may  also  be  reimbursed  by  money 
contributions  of  the  inhabitants,  which  thus  resemble  taxes.  In 
both  of  these  cases  the  enforcement  of  the  rule  is  in  the  hands  of 
military  authorities,  and  is  discussed  in  considering  the  obliga- 
tions of  prevention  in  relation  to  the  land  forces.^* 

Ordinarily  the  sanction  of  military  law,  controlling  the 
armed  forces,  alone  guarantees  this  obligation  of  abstention. 
There  is  no  possibility  of  recourse  to  judicial  authority  as  is  pro- 
vided in  the  case  of  naval  captures.  Prize  courts  have  repeatedly 
asserted  that  their  jurisdiction  does  not  extend  to  land  captures.^® 
The  reason  for  this  difference  is  to  be  found  in  the  fact  that  in 
naval  war,  questions  of  neutral  rights  are  apt  to  be  involved; 
whereas  this  is  not  so  true  in  land  captures.  Property  on  enemy 
territory  is  prima  facie  enemy  property.  The  enemy’s  privilege 
of  a judicial  adjudication  of  his  property  captured  at  sea  arises 
from  the  probabliity  of  its  association  with  neutral  property. 

It  is  not,  however,  impossible  that  all  property  seized  on 

i®The  international  prize  court  is  given  jurisdiction  over  enemy  prop- 
erty when  the  case  involves  enemy  cargo  in  a neutral  ship,  and  when  a 
claim  is  based  on  an  allegation  that  the  seizure  has  been  effected  in  viola- 
tion of  the  provisions  of  a convention  or  of  an  enactment  of  the  belliger- 
ent captor.  Hague  conventions,  1907,  xii,  art.  3.  See  Charles,  Treaties, 
1913,  p.  250. 

^’’United  States  courts  have  stated  this  principle,  see  Brown  vs.  U.  S., 
8 Cranch  no,  (1814)  ; U.  S.  vs.  1756  shares  of  capital  stock,  5 Blatch.  231; 
U.  S.  vs.  Klein,  13  Wall.  128,  137;  Lamar  vs.  Brown,  92  U.  S.  194,  Moore's 
Digest,  7 1288-289. 

i^Infra.  p.  210. 

i^Brown.  vs.  U.  S.,  8 Cranch.  no,  (1814)  ; Kirk  vs.  Lynde,  106  U.  S. 
315,  317;  Oakes  vs.  U.  S.,  174  U.  S.  778,  786,  (1899). 


206 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[206 


land  should  be  subject  to  legal  adjudication  before  confiscation. 
The  British  prize  courts  have  in  fact  been  given  jurisdiction  of 
such  seizures.-®  In  the  United  States  the  abandoned  and  cap- 
tured property  act  of  1863-^  furnished  a somewhat  similar  rem- 
edy during  the  Civil  war.  By  this  act,  a sum  equal  to  the  value 
of  captured  property  was  to  be  deposited  in  the  treasury,  and 
persons  claiming  ownership  Avere  permitted  to  prosecute  claims 
for  such  property  in  the  court  of  claims.  Property  intended  for 
use  ill  waging  war  such  as  arms,  ordinance  ships,  steamboats,  for- 
age, military  supplies,  etc.,  were  excluded,  and  persons  who  had 
given  ‘‘aid  or  comfort”  to  the  rebellion  were  denied  this  priv- 
ilege. 

Such  privileges  as  this  have  not  been  granted  in  other  wars. 
This  act  probably  was  due  to  the  fact  that  being  a civil  war, 
many  inhabitants  of  the  seat  of  war  were  loyal  to  the  union 
cause.  The  act  was  to  reimburse  such  persons,  rather  than  ene- 
mies. As  a matter  of  fact,  by  an  act  of  1864^^  it  was  specifically 
declared  that  the  jurisdiction  of  the  court  of  claims  should  not 
extend  to  general  claims  “against  the  United  States  growing  out 
of  the  destruction  or  appropriation  of  or  damage  to  property  by 
the  army  or  navy”  during  the  Civil  war. 

In  general  therefore  the  United  States  does  not  provide  for 
the  enforcement  by  means  of  judicial  adjudication  of  its  duty  to 
abstain  from  capturing  enemy  private  property  on  land.  The 
duty  is  enforced  indirectly  by  measures  for  preventing  illegal 
seizures  by  armed  forces. 

-^Statute  1840,  3-4  Viet.  c.  65,  sec.  22,  The  Banda  and  Kirwee  Booty 
L.  R.  I Adm.  and  Ecc.  109  (1866)  Pitt  Cobbett  cases  and  opinions  on  in- 
ternational law,  2 vols.,  London,  1913,  2;20i. 

2iAct  March  12,  1863,  12  stat.  820;  Moore’s  Digest,  7 ;295-300.  Cases 
under  this  act,  see  Young  vs.  U.  S.  97  U.  S.  39,  (1877)  ; Briggs  vs.  U.  S., 
143  U.  S.  346,  (1892)  ; Vance  vs.  U.  S.,  30  Ct.  Cl.,  252.  British  subjects 
enjoy  the  benefits  of  this  act,  U.  S.  vs.  O’Keefe,  ii  Wall.  178;  Carlisle  vs. 
U.  S.  16  Wall  147. 

22  Act,  July  4,  1864,  13  stat.  381. 


CHAPTER  XV.  OBLIGATIONS  OP  PREVENTION 


INTRODUCTORY 

It  is  for  the  most  part  through  the  enforcement  of  tlie  duty 
of  prevention,  as  against  its  armed  representatives,  that  the  state 
fulfills  its  duties  of  abstention ; and  it  is  largely  through  the  mu- 
nicipal sanctions  thus  enforced  that  the  law  of  war  is  observed  at 
all.  The  belligerent’s  duties  toward  neutrals  tend  to  be  observed 
because  of  the  sanctions  of  international  law.  Neutrals  can  bring 
threats  of  force  and  demands  for  reparation  which  the  belligerent 
usually  finds  it  convenient  to  heed.  But  in  the  law  of  war  the 
enemy  is  already  using  all  the  force  he  can.  The  treaty  of  peace 
definitely  concludes  any  further  demand  for  reparation.  What 
therefore  is  the  force  which  causes  obedience  to  the  law  of  war? 
There  is  none,  except  that  of  self-interest.  Reciprocity  benefits 
both  belligerents.  Each  knows  that  a breach  of  law  on  its  part 
will  bring  about  a retaliatory  breach  by  the  other.  If  this  pro- 
cess were  continued,  war  rights  would  soon  pass  all  limits,  the 
law  of  war  would  disappear  and  savagery  would  prevail.  It  is 
only  in  so  far  as  the  principle  of  reciprocal  benefit  acts  that  the 
law  is  obeyed. 

The  state  must  therefore  take  extreme  care  that  its  armed 
representatives  do  not  unwittingly  break  the  law  of  war,  for  the 
minute  the  breach  is  made,  a progressive  march  of  retaliation  and 
counter-retaliation  will  have  begun  which,  although  contrary  to 
the  self-interest  of  both,  neither  can  stop.  We  will  therefore  dis- 
cuss the  laws  of  the  United  States  designed  to  prevent  infractions 
of  the  law  of  war  by  its  (1)  land  forces  and  (2)  naval  forces.  As 
a third  division  we  will  consider  the  laws  of  like  effect  in  refer- 
ence to  (3)  the  civil  population. 

ACTS  BY  LAND  FORCES 

Military  law,  military  government,  and  martial  law  are 
three  terms  relating  to  the  legal  position  of  land  forces  in  time 
of  war  which  should  be  distinguished.^  Martial  law  is  the  law 
in  force  in  portions  of  the  home  territory  of  a belligerent  near 

^On  these  distinctions  see  Ex  Parte  Milligan,  4 Wall,  2;  W.  E.  Birk- 
heimer,  Military  Government  and  Martial  Law,  2nd.  ed.  London,  1904;  p. 
21,  372,  G.  B'.  Davis,  Treatise  on  Military  Law,  p.  6. 

207 


208  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [208 

the  seat  of  war  or  in  a state  of  insurrection.  It  is  a matter  regu- 
lated entirely  by  constitutional  law  and  as  its  effect  is  primarily 
domestic  it  has  no  connection  with  international  law,  except  in 
case  neutrals  are  injured  by  the  suspension  of  constitutional 
guarantees,  in  which  case  international  questions  would  arise, 
but  extraneous  to  the  present  topic. 

Military  government  exists  when  an  army  is  in  secure  occu- 
pation of  a portion  of  enemy  territory.  The  law  applied  under 
military  government,  (to  which  the  term  martial  law  is  also 
sometimes  applied),-  bears  a relation  to  martial  law,  but  in  real- 
ity the  condition  is  somewhat  different.  In  the  latter  case  the 
persons  affected  are  for  the  most  part  citizens ; in  the  former  they 
are  foreigners.  The  law  of  military  government,  therefore,  is  a 
matter  governed  by  international  law.  The  occupying  belliger- 
ent owes  obligations  to  the  inhabitants  and  they  owe  obligations 
to  it,  both  of  which  are  determined  by  international  law.  We  are 
therefore  concerned  here  with  the  law  of  military  government 
which  the  United  States  requires  of  its  armies. 

Military  law  is  the  law  regulating  the  conduct  of  the  army. 
It  consists  of  the  rules  defining  the  powers  and  liabilities  of  mili- 
tary officers  and  enlisted  men  and  the  means  of  enforcing  them. 
It  defines  the  constitution  of  military  tribunals,  such  as  courts 
martial,  military  commissions  and  commissions  of  inquiry,  their 
jurisdiction  and  their  procedure,  as  well  as  the  rules  of  executive 
subordination  and  enforcement  of  discipline.  In  the  United 
States,  military  law  is  found  in  statutes,  army  regulations,  and 
instructions  and  opinions  of  courts,  attorneys  general  and  judge 
advocates  general.^  Military  law  is  not  a part  of  international 

-See  Lieber’s  Instructions,  art.  i-io.  By  applying  the  theory  of  de 
facto  governments,  that  sovereignty  passes  immediately  upon  effectual  oc- 
cupation of  the  territory,  the  law  of  military  governments  fulfills  our  defi- 
nition of  marital  law,  for  the  occupied  territory  has  become  home  terri- 
tory. With  this  conception  the  law  of  military  government  would  be  a 
subject  of  constitutional  rather  than  of  international  law.  Because  of  the 
practical  difference  and  because  of  the  fact  that  military  government  is  re- 
garded as  a temporary  and  not  permanent  transfer  of  sovereignty,  it 
seems  well  to  preserve  the  distinction. 

3The  statutory  laws  relating  to  the  control  of  the  army,  annotated 
with  references  to  court  decisions,  and  official  opinions,  may  be  found  in 
“The  Military  laws  of  the  United  States”,  1901,  ed.  G.  B.  Davis,  with  sup- 
plement to  1911,  ed.  J.  B.  Porter.  The  “Digest  of  Opinions  of  the  Judge 
Advocates  General  of  the  Army”  published  in  1912,  C.  R.  Rowland,  ed., 
also  contains  references  to  statutes,  cases  and  opinions  of  attorneys  gen- 
eral bearing  on  the  various  points.  See  also  annual  publication  of  Army 
Regulations  and  General  Orders  of  the  War  Department. 


209] 


BELLIGERENT  AND  ENEMIES 


209 


law.  The  relationships  it  defines  are  entirely  domestic.  Yet  it  is 
of  great  importance  for  our  present  subject,  for  it  is  through  the 
sanctions  of  military  law  that  the  army  is  compelled  to  obey  the 
law  of  war.  Much  of  it  consists  of  laws  supplementary  to  inter- 
national law. 

There  has  long  been  a discussion  whether  war  is  a relation 
between  states  or  between  armies.  The  latter  view  was  eloquently 
espoused  by  Rousseau^  and  apparently  influenced  the  early 
statesmen  of  the  United  States.  At  any  rate  the  policy  they  es- 
tablished, now  a national  tradition,  that  private  property  ought 
to  be  immune  from  capture  in  war,  is  in  harmony  with  it.  The 
present  regime  of  universal  conscription  armies  seems  to  nullify 
the  theory,  in  Europe  at  least.  In  our  view  Rousseau’s  dicta  is 
untenable.  The  relationship  is  one  between  two  communities  or 
states,  not  between  two  armies  or  two  navies.  Facts  are  sufficient 
justification  for  the  assertion.  It  is,  however,  clear  that  though 
both  are  enemies  a distinction  exists  between  combatants  and  non- 
combatants.  We  may  therefore  consider  successively  the  duties 
of  the  army  to  (1)  combatants  and  (2)  non-combatants. 

(1)  The  duties  of  armed  forces  toward  enemy  combatants 
include  such  matters  as  the  employment  of  only  legitimate  means 
of  warfare,  care  of  sick  and  wounded,  treatment  of  prisoners  of 
war  and  spies,  observance  of  flags  of  truce,  armistices,  etc. 

A number  of  early  treaties  prescribed  humane  treatment  for 
prisoners  of  w^ar.®  All  of  the  subjects  mentioned  are  regulated 
in  detail  in  the  Hague  conventions  of  1899  and  1907  relating  to 
the  laws  of  war  on  land  and  in  the  Geneva  conventions  of  1864 
establishing  the  red  cross  flag  and  prescribing  rules  for  the  care 
of  the  sick  and  wounded.  By  its  ratification  of  these  treaties  the 
United  States  has  made  them  law  for  its  armies.  The  same  mat- 
ters are  covered  by  Francis  Lieber’s  celebrated  instructions  for 
the  government  of  the  armies  of  the  United  States  in  the  field, 
written  during  the  Civil  war.  On  April  24,  1863,  these  instruc- 
tions were  officially  promulgated  as  a general  order  of  the  war  de- 
partment and  are  therefore  binding  law  for  the  army.  The  in- 

U.  J.  Rousseau,  The  Social  Contract,  Translation  by  Tozer,  London, 
1909,  p.  106.  See  discussion  on  this  question,  J.  Westlake,  Principles  of 
International  Law,  Cambridge,  1894,  p.  258;  G.  M.  Ferrante,  Private  Prop- 
erty in  Maritime  War,  Pol.  Sci.  Quar.,  20;  706,  (1895). 

^Treaties,  Algiers,  1816-1830,  art.  17,  p.  15;  Prussia,  1785-1796,  art.  24, 
p.  1484;  1799-1810,  revived  1828,  art.  24,  p.  1494;  Mexico,  1848,  art.  22,  p. 
1118;  Morocco,  1787-1836,  art.  16,  p.  1209,  Tripoli,  1805-1911,  art.  16,  p.  1791. 


210 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[210 


structions  give  detailed  regulations  defining  the  limits  permitted 
by  necessity  and  by  retaliation,  the  treatment  of  prisoners  of 
war  and  spies,  use  of  flags  of  truce,  exchange  of  prisoners,  and 
prohibited  measures  such  as  assassination. 

The  enforcement  of  these  laws  is  largely  in  the  hands  of 
military  commissions.  Courts  martial,  being  of  statutory  juris- 
diction, can  not  take  cognizance  of  many  of  these  cases,  as 
violations  of  the  laws  of  war  are  not  listed  in  the  offenses  speci- 
fied in  the  articles  of  war.®  By  statute  courts  martial  are, 
however,  given  jurisdiction  over  the  trial  of  spies, ^ and  over 
officers  or  soldiers  injuring  persons  bringing  provisions  or  other 
necessaries  to  the  army  while  in  ‘‘foreign  parts This  juris- 
diction extends  to  camp  followers,  retainers  and  militia  in  the 
service  of  the  government,  as  well  as  the  regular  army  and 
volunteers  violating  the  articles  of  war.*  The  imposition  of  crim- 
inal penalties  upon  violators  is  the  means  employed  by  both 
courts  martial  and  military  commissions  for  enforcing  the  law.®  It 
must  not  be  lost  sight  of,  however,  that  the  control  of  the  army 
is  largely  executive  rather  than  legal.  It  is  to  the  discretion 
of  commanding  officers  that  enforcement  of  the  laws  of  war, 
whether  unwritten,  in  treaties,  or  in  orders,  is  left.^® 

(2)  Non-combatants  vary  in  legal  rights  somewhat  accord- 
ing to  circumstances.  Thus  non-combatants  domiciled  in  the 
belligerent’s  own  state,  in  territory  under  military  government 
and  in  the  actual  zone  of  hostilities  enjoy  different  immunities. 
The  army  does  not  affect  the  first  class.  Their  treatment  will 
be  considered  under  the  duties  of  the  civil  population. 

®On  authority  and  jurisdiction  of  courts  martial  and  military  com- 
missions see  Rev.  Stat.  sec.  1342-1343;  Military  Laws,  1911,  p.  744,  note  i, 
p.  745;  Dig.  Op.  Judge.  Ad.  Gen.,  1912,  p.  1067;  Lieber’s  Instructions, 
art.  13. 

'^Rev.  Stat.  sec.  1343. 

^Articles  of  War,  Rev.  Stat,  sec.  1342,  art  56,  63,  64.  Courts  martial 
may  punish  members  of  these  classes  for  felonies  in  time  of  war,  (art. 
58)  and  soldiers  for  being  found  over  a mile  from  camp  without  leave, 
(art  34). 

®Dig.  Op.  Judge  Ad.  Gen.,  1912,  pp.  510-51 1,  1071-1072. 

i®By  the  Articles  of  War  an  officer  must  keep  good  order  and  “to 
the  utmost  of  his  power,  redress  all  abuses  and  disorders  which  may  be 
committed  by  an  officer  or  soldier  under  his  command,  (art.  54)  and  offi- 
cers guilty  of  conduct  unbecoming  an  officer  and  a gentleman  may  be  dis- 
missed.” (art.  61). 


211] 


BELLIGERENT  AND  ENEMIES 


211 


In  the  second  case  the  United  States  has  recognized  the 
principles  that  such  persons  are  immune  from  injury  and  their 
property  from  confiscation  so  long  as  they  observe  their  duty 
of  acquiescence  to  the  occupying  government.  The  duties  of 
the  army  in  this  connection  are  prescribed  in  the  Hague  con- 
ventions and  in  Lieber’s  instructions.  Special  instructions  to 
army  officers  are  also  usually  issued  providing  rules  for  military 
government.  It  is  a remarkable  fact  that  during  General 
Scott’s  occupation  of  parts  of  Mexico  in  1846,  he  enforced  the 
general  rule  of  paying  for  requisitions  and  levying  only  contri- 
butions in  lieu  of  taxes  to  pay  for  the  civil  administration  of 
the  territory,  until  he  had  received  special  instructions  from 
Washington  to  adopt  a harsher  practice.  It  was  thought  that 
Mexico  was  continuing  the  war  because  the  civil  population  was 
not  feeling  its  hardship,  consequently  the  instructions  ordered 
him  to  support  his  army  by  uncompensated  seizures.  Very  re- 
luctantly he  undertook  this  policy,  which  is  contrary  to  modern 
international  law  and  in  his  opinion  at  that  time  was  inexpedi- 
ent. Here  was  a case  where  the  discretion  of  the  general  on 
the  field  was  more  efficient  in  enforcing  the  law  of  war  than 
that  of  authorities  higher  up.^^ 

The  conduct  toward  non-combatants  in  the  actual  zone  of 
hostilities  is  also  provided  for  in  the  Hague  conventions.  A 
number  of  early  treaties  provided  for  the  immunity  of  non- 
combatants  in  person  and  the  payment  for  all  requisitions.^^ 
The  Hague  conventions  besides  covering  these  points  forbid 
unnecessary  injuries  to  non-combatants,  the  bombardment  of 
undefended  towns,  and  pillage.  Similar  matters  are  covered  in 
Lieber’s  instructions.  Special  statutes  and  instructions,  how- 
ever, especially  during  the  Civil  war,  have  required  a far  harsher 
treatment.^^  The  treaties  and  instructions  covering  these  points 
are  law  and  enforceable  through  the  exercise  of  penal  jurisdic- 
tion by  military  commissions  and  through  executive  coercion. 
The  preservation  of  the  rights  of  non-combatants  may  also  be 
enforced  through  laws  providing  for  their  indemnification  for 
requisitions,  after  the  war.  This  is  provided  for  in  the  provi- 

iiMoore’s  Digest,  7 ;282-285. 

i^Treaties  with  Prussia,  1785-1796,  art.  23,  p,  1414;  1799-1810,  revived 
1828,  art.  23,  p.  1444;  Mexico,  1848,  art.  22,  p.  1117;  Italy,  1871,  art.  21,  p. 

975. 

^^Confiscation  act,  July  17,  1862,  12  stat.  589.  On  confiscation  of  cot- 
ton and  slaves  during  the  Civil  war  see  Moore’s  Digest  7 ;300-366.  For  or- 
ders during  Mexican  war  see  Moore’s  Digest  7 ;282-285. 


212 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[212 


sions  of  the  Hague  conventions  and  Lieber’s  instructions  which 
require  the  giving  of  cash  or  receipts,  good  after  the  war  for  all 
requisitions/^  In  the  Civil  war  by  the  captured  and  abandoned 
property  act^^  the  United  States  provided  for  the  indemnifica- 
tion of  non-combatants.  A sum  equal  in  value  to  all  requisitions 
was  to  be  deposited  in  the  treasury  and  all  persons  were  com- 
pensated from  this  fund  if  they  could  prove  that  they  had  taken 
no  active  part  in  the  rebellion. 

ACTS  BY  NAVAL  FORCES. 

The  law  governing  the  conduct  of  the  naval  authorities  is 
contained  in  statutes,  regulations,  instructions,  and  the  opinions 
of  courts.^®  Naval  courts  martial  with  jurisdiction  over  offenses 
against  the  statutory  articles  for  the  government  of  the  navy 
are  provided,  but  the  enforcement  of  the  law  of  naval  warfare 
is  largely  intrusted  to  the  discretion  of  commanding  officers. 

(1)  The  duties  of  the  navy  toward  enemy  combatants  are 
specified  in  the  Hague  convention  of  1907  and  the  Geneva  con- 
ventions as  applied  to  naval  warfare  adopted  at  the  same  time. 
In  1868  a treaty  was  signed  extending  the  provisions  of  the 
Geneva  convention  to  naval  war.  It  was  not  generally  ratified, 
although  the  United  States  did  so  in  1882.  In  1898  the  United 
States  issued  a circular  stating  that  these  additional  articles 
would  serve  as  a modus  vivendi  during  the  war  with  Spain, 
and  in  consequence  the  Navy  Department  issued  a General  Or- 
der requiring  the  observance  of  these  regulations  in  the  treat- 
ment of  “The  Solace”,  which  had  been  fitted  out  as  an  ambu- 
lance ship.^’’  Besides  incorporating  the  principles  of  the  Geneva 
convention,  the  Hague  convention  of  1907  limits  the  use  of 
submarine  contact  mines,  and  the  bombardment  of  undefended 
coast  towns.  In  Stockton’s  Naval  War  Code,  in  force  from  1900' 
to  1904,  and  in  instructions  issued  at  the  beginning  of  wars^® 
the  limits  of  hostile  acts  against  enemy  public  forces  have  been 

i^Hague  Conventions,  1907,  v,  art.  52;  Lieber’s  Instructions,  art.  38. 

i®Act  March  12,  1863,  12  stat.  820.  See  Moore’s  Digest,  7;295-3oo. 

i®Articles  for  the  government  of  the  Navy,  Rev.  Stat.  sec.  1624;  Reg- 
ulations for  the  Government  of  the  Navy  of  the  United  States,  1913,  con- 
taining also  permanent  instructions. 

I'^Additional  articles  to  Geneva  Convention,  1868,  Modus  Vivendi,. 
1898,  General  Order  of  Navy  Dept.,  and  Correspondence,  Malloy,  Treaties,. 

p.  1907-1924. 

i®Instructions  to  Blockading  vessels  and  Cruisers,  June  20,  1898,  Gen. 
Ord.  492,  For.  Rel.  1898,  p.  780. 


213] 


BELLIGERENT  AND  ENEMIES 


213 


prescribed.  In  the  navy  regulations  of  1913  it  is  provided  that 
‘ ‘ when  the  United  States  is  at  war,  the  commander  in  chief  shall 
require  all  under  his  command  to  observe  the  rules  of  humane 
warfare  and  the  principles  of  international  law.”^^  It  will 
thus  be  seen  that,  as  in  the  case  of  the  army,  the  enforcement 
of  the  duties  of  naval  war  is  largely  left  to  the  executive  control 
of  naval  officers. 

(2)  The  duties  of  the  navy  toward  enemy  non-combatants 
relate  largely  to  the  exercise  of  the  right  of  capturing  private 
property  at  sea,  but  certain  restrictions  upon  possible  injury 
to  persons  are  also  required.  Naval  forces  are  forbidden  bom- 
barding undefended  coast  towns,  indiscriminately  laying  sub- 
marine contact  mines  or  unnecessarily  cutting  cables  between 
belligerent  and  neutral  territory,  by  the  Hague  conventions  of 
1907.^®  These  provisions  are  designed  for  the  protection  both 
of  enemy  non-combatants  and  of  neutrals.  The  same  obligations 
with  the  exception  of  that  relating  to  mines  were  prescribed  in 
Stockton’s  Naval  war  code  and  it  was  especially  stated  that 
‘‘non-combatants  are  to  be  spared  in  person  and  property  dur- 
ing hostilities  as  much  as  the  necessities  of  war  and  the  conduct 
of  non-combatants  Avill  permit.-^ 

The  enforcement  of  these  duties,  like  those  required  in 
dealing  with  enemy  armed  forces,  is  left  to  the  authority  of 
naval  officers,  subject  to  the  control  of  the  navy  department 
through  instructions  and  executive  action. 

In  general  the  duty  in  reference  to  the  seizure  of  enemy 
property  at  sea  is  enforced  by  the  same  measures  as  those  relat- 
ing to  the  seizure  of  neutral  prizes.  The  law'  of  prize  grew  up 
for  the  benefit  of  neutrals  but  because  of  the  frequent  difficulty 
of  determining  between  neutral  and  enemy  property  at  sea, 
enemy  individuals  are  benefited  by  the  same  rules. 

As  pointed  out  in  considering  the  law  of  neutrality,  the 
seizure  of  prizes  by  public  naval  forces  alone,  their  care,  treat- 
ment, bringing  in  and  adjudication  are  provided  for  in  treaties, 
and  instructions  of  the  navy  department.  These  provisions  are 
made  effective  by  such  measures  as  the  abolition  of  privateering, 
the  abolition  of  prize  money,  the  holding  of  vessels  liable  in 
damages  for  seizures  without  probable  cause,  and  by  the  estab- 
lishment of  prize  courts  with  adequate  jurisdiction.  Although 

i^Navy  Regulations,  1913,  sec.  1635. 

20Hague  Conventions,  1907,  iv,  art.  54,  viii,  ix. 

-^Stockton’s  Naval  War  Code,  art.  3,  4,  5- 


214 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[214 


enemy  prizes  benefit  in  the  main  by  provisions  applicable  to 
neutrals,  this  is  not  always  true.  Enemy  property  is  prima  facie 
condemnable ; therefore  it  is  seldom  that  damages  can  be  ob- 
tained for  a seizure  even  where  the  vessel  proves  to  be  immune. 
Also,  because  of  this  prima  facie  liability,  the  destruction  of 
enemy  prizes  is  not,  by  the  Declaration  of  London,  made  subject 
to  such  grave  presumptions  of  illegality,  and  the  treatment  to 
be  accorded  the  officers  and  crew  of  enemy  vessels  is  different 
from  that  in  the  case  of  neutrals.-^ 

The  general  principle  that  prizes  must  be  brought  in  and 
that  title  does  not  pass  until  legal  adjudication  applies  to  enemy 
private  vessels  as  well  as  neutral.  The  law  applied  by  prize 
courts  in  adjudicating  enemy  prizes  has  been  considered  in 
treating  the  belligerent’s  obligations  of  abstention  toward  neu- 
trals and  enemies. 

ACTS  BY  THE  CIVIL  POPULATION. 

International  law  requires  a belligerent  state  to  prevent  its 
citizens  from  performing  certain  acts  against  the  person  and 
propert}^  of  enemy  individuals.  In  a large  number  of  treaties 
the  United  States  has  recognized  the  principle  that  enemy  indi- 
viduals in  its  territory  are  immune  from  injury  or  confiscation 
of  property. During  both  the  Mexican  and  Spanish  wars 
special  instructions  specifically  called  attention  to  such  treaties.^'^ 
The  usual  criminal  laws  of  the  states  serve  to  prevent  the  spo- 

--The  Paquete  Habana,  175  U.  S.  677,  (1899);  and  189  U.  S.  453, 

(1903). 

-^The  Declaration  of  London,  1909,  art.  48-54,  on  destruction  of  neu- 
tral prizes. 

-“^The  United  States  has  concluded  twenty-seven  treaties  with  twenty- 
three  countries  on  this  subject.  Ten  are  now  in  force.  As  examples  see 
treaty  with  Mexico,  1831-1881,  art.  26,  p.  1903;  1848,  art.  22,  p.  1117,  Spain, 
1795-1902,  art.  13,  p.  1645.  Generally  a time  is  specified,  varying  from  six 
months  to  a year,  in  which  merchants  may  wind  up  their  affairs  and  leave 
the  country  unmolested.  Supra,  p.  202,  note  5. 

^^Circular  of  Treasury  Department  to  customs  collectors,  June  ii, 
1846,  Br.  and  For.  St.  Pap.,  3411138,  calling  attention  to  the  treaty  of  1831, 
giving  Mexican  merchants  the  right  to  leave  the  country,  and  letter  of 
Asst.  Sec.  of  State,  J.  B.  Moore,  Moore’s  Digest,  7 -,255,  calling  attention 
to  the  provisions  of  the  Spanish  treaty  of  1795-  Spain  claimed  that  the 
treaty  was  abrogated  by  the  war,  a claim  which  the  United  States  denied. 
Such  provisions  as  this  would  obviously  be  meaningless  if  the  treaty  were 
abrogated  by  war.  Several  of  these  provisions  are  followed  by  the  state- 
ment that  they  shall  not  be  abrogated  by  war;  See  Treaty  with  Prussia 
mentioned,  supra  p.  202,  note  5. 


215] 


BELLIGERENT  AND  ENEMIES 


215 


liation  of  such  aliens  the  same  as  in  time  of  peace.  The  treaties 
would  also  avail  to  gain  freedom  for  the  alien  in  case  of  deten- 
tion by  executive  authority  unless  such  detention  were  specifi- 
cally authorized  act  of  congress  or  unless  martial  law  had 
been  declared  in  the  territory  in  question.  Where  such  cases 
exist,  undoubtedly  the  courts  could  not  intervene  to  release 
detained  enemy  persons.  In  the  alien  enemies  act  of  1798  the 
detention  or  removal  of  such  persons  is  provided  for  but  express 
provision  is  made  for  the  observance  of  treaty  exemptions.-® 
During  the  Civil  war  numerous  detentions  of  this  kind  were 
made,  and  although  the  courts  held  after  the  war  that  they 
were  not  in  all  cases  justifiable  according  to  the  constitution, 
as  a matter  of  fact  while  war  was  in  progress  judicial  process 
was  of  no  benefit  to  the  prisoners.-^  In  this  case  there  were,  of 
course,  no  treaties  providing  immunity. 

United  States  law  recognizes  the  principle  that  all  commer- 
cial intercourse  between  enemies  stops  at  the  outbreak  of  war 
and  the  courts  will  not  enforce  obligations  due  to  enemies  on 
contracts  or  commercial  transactions  made  after  the  outbreak 
of  war.-*  The  principle  is,  however,  by  no  means  of  universal 
application.  Private  contracts  valid  before  the  war  are  valid 
after  it,  unless,  as  in  the  case  of  insurance  contracts,  time  is  an 
element.-®  In  such  cases  war  suspends  but  does  not  abrogate 
contracts.  Furthermore  contracts  made  in  good  faith,  which 
have  no  relation  to  the  war,  may  be  enforceable  even  when  made 
during  war.  Such  a contract  has  been  upheld  where  both  par- 
ties were  domiciled  in  the  same  territory,*®  and  a devise  by  a 
United  States  citizen  to  an  alien  enemy,  resident  in  the  enemy 
country,  was  upheld.*^ 

The  confiscation  of  debts  or  other  enemy  property  on  land 
in  the  absence  of  express  act  of  the  sovereign  has  also  been 
forbidden**  by  the  courts.  After  the  Revolutionary  war  the 

2«Act  July  6,  1798  I Stat.  577.  Rev.  Stat.  sec.  4067-4070. 

-7Ex  parte  Milligan,  4 Wall.  2. 

-*Scholefield  vs.  Eichelberger,  7 Pet.  586;  The  Rapid,  8 Cranch  155, 
(1814)  ; President’s  proclamation  Aug.  16,  1861,  12  stat.  1262. 

Y.  Life  Ins.  Co.  vs.  Statham,  93  U.  S.  24,  (1875). 

^®Kershaw  vs.  Kelsey,  100  Mass.  561.  (1868). 

^ipairfax’  Devisee  vs.  Hunter’s  Lessee,  7 Cranch  603,  (1813).  On  this 
general  subject  see  Moore’s  Digest,  7 ;237-254. 

'^^Georgia  vs.  Brailsford,  3 Dali,  i;  Ware  vs.  Hylton,  3 Dali.  199; 
Stanbery,  Att.  Gen.,  12  op.  72,  (1866)  ; Planters  Bank  vs.  Union  Bank,  16 
Wall.  483;  Williams  vs.  Bruffy,  96  U.  S.  176,  (1877)  ; Brown  vs.  U.  S.  8 
Cranch  no,  (1814). 


216 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[216 


courts  held  state  confiscation  acts  invalid,  as  conflicting  with  the 
British  treaty  of  peace.  The  fact  that  a citizen  had  paid  his 
debt  to  the  state  treasury  was  held  to  be  no  bar  to  the  British 
creditor’s  right  of  action.^^  Confiscation  acts  by  congress  would 
undoubtedly  be  regarded  as  valid  even  when  opposed  by  treat- 
ies, as  acts  of  congress  are  ordinarily  held  to  supersede  earlier 
treaties.  Whether  the  passage  of  such  an  act  at  all  is  within 
the  constitutional  competence  of  congress  is  a question  not  con- 
sidered here.  If  the  guarantee  of  enemies  against  confiscation 
of  debts  were  included  in  the  constitution,  undoubtedly  the 
privilege  could  be  enforced  even  against  congress  by  the  power 
of  the  courts  to  declare  laws  unconstitutional.  In  the  absence 
of  a treaty,  constitutional  provision  or  federal  statute,  it  is 
questionable  whether  state  statutes  confiscating  enemy  debts 
could  be  prevented  by  the  courts. 

The  confiscation  of  enemy  private  property  on  land  when 
in  the  zone  of  hostilities  or  in  territory  under  military  govern- 
ment is  justified  on  principles  of  necessity  under  the  restric- 
tions required  in  levying  requisitions  and  contributions  by  the 
army.  Where  the  property  is  in  the  belligerent  state’s  own 
territory,  not  under  martial  law,  the  plea  of  necessity  can  not 
be  offered.  In  such  cases  the  courts  have  held  that  the  property 
may  not  be  confiscated  unless  an  act  of  the  sovereign  specifically 
requires.  The  outbreak  of  war  does  not  itself  confiscate  enemy 
property,  although  the  court  held  that  confiscation  by  the  sov- 
ereign was  compatible  with  international  law,  a view  no  longer 
held.^'^ 

Enemy  merchant  vessels  in  the  belligerent’s  jurisdiction  on 
the  outbreak  of  war  are  subject  to  the  same  rule.  By  the  Hague 
convention  they  may  not  be  confiscated  unless  by  their  build 
they  show  that  they  ‘‘are  intended  for  conversion  into  war 
ships.”  The  same  convention,  however,  permits  such  vessels  to 
be  detained  or  requisitioned  with  compensation  where  they  can 
not  leave  in  a short  time  because  of  “force  majeure,”  but  per- 
mission to  leave  in  a specified  time  is  declared  “desirable”.®'^ 
The  United  States  followed  this  rule  in  its  naval  instructions 

33Ware  vs.  Hylton,  3 Dali.  199,  (1796). 

s^Brown  vs.  U.  S.  8 Cranch  no,  (1814)  ; Cargo  of  Ship  Emulous,  i 
Gall.  562;  U.  S.  vs.  1756  shares  of  Capital  Stock,  5 Blatch.  231. 

35Hague  Conventions.  1907,  vi.  This  convention  has  not  been  signed 
or  ratified  by  the  United  States. 


217] 


BELLIGERENT  AND  ENEMIES 


217 


of  the  Spanish  war.^®  The  subject  has  been  discussed  at  greater 
length  in  considering  duties  of  abstention.  Suffice  it  to  say  here 
that  the  law  of  the  United  States  attempts  to  prevent  the  con- 
fiscation of  such  vessels  as  well  as  other  enemy  private  property 
in  its  jurisdiction  on  the  outbreak  of  war. 

3®Instructions,  June  20,  1898,  art.  7,  For.  Rel.  1898,  p.  780;  Proclama- 
tion, Apr.  26,  1898,  30  stat.  1770. 


CHAPTER  XVI.  CONCLUSION. 


The  views  enunciated  in  the  foregoing  pages  are  based  on 
the  theory  that  all  rules  of  conduct,  for  a breach  of  which  states 
as  such  are  held  liable,  are  rules  of  international  law.  Viewed 
from  this  standpoint,  the  rules  of  international  law  can  be  di- 
vided into  two  general  classes : ( 1 ) those  prescribing  conduct  for 
the  sovereign  power  in  states,  (2)  those  prescribing  conduct  for 
persons  and  governmental  agencies  subject  to  the  control  of  the 
sovereign  power. 

RULES  OP  INTERNATIONAL  LAW  PRESCRIBING  CONDUCT  FOR 
SOVEREIGN  POWERS 

In  a sense  all  rules  of  international  law  fall  in  the  first 
class.  The  responsibility  for  the  observance  of  international 
law  and  consequently  the  duty  of  enforcing  it,  rests  with  sover- 
eigns. Yet  if  we  consider  the  rules  themselves,  and  regard  the 
conduct  prescribed  rather  than  the  responsibility  imposed,  a 
large  part  of  them  belong  in  the  second  class  and  are  capable 
of  enforcement  by  municipal  law.^ 

It  is  hoped  that  the  foregoing  pages  have  indicated  what 
these  rules  are  and  the  manner  in  which  they  are  enforced  by 
the  municipal  law  of  the  United  States. 

The  rules  of  international  law  which  prescribe  conduct  for 
the  sovereign  alone  are  known  as  “political  questions”,  and 
embrace  such  matters  as  the  recognition  of  new  states,  and 
newly  acquired  territory,  intervention,  termination  of  treaties 
and  declarations  of  war.  In  respect  to  these  matters,  interna- 
tional law  has  laid  down  rules  of  varying  definiteness.  It  at- 
tempts to  determine  when  new  states,  new  governments,  and 
belligerent  and  insurgent  communities  must  be  recognized,  when 
intervention  is  proper,  under  what  conditions  treaties  may  be 
terminated,  etc.  According  to  the  older  writers,  it  detailed  the 
circumstances  under  which  a just  war  might  be  waged.  Ob- 
servance of  these  rules,  if  indeed  they  are  rules  of  international 

^“This  usage  thus  becomes  not  merely  a rule  for  the  guidance  of  the 
state,  but  for  the  guidance,  enjoyment  and  observance  of  the  individual 
member  of  the  body  politic,  and  the  very  claim  of  the  rule  in  question 
makes  it  of  necessity  a measure  of  municipal  right  and  duty.”  J.  B.  Scott, 
The  Legal  Nature  of  International  Law,  Am.  Jour.  Int.  Law,  i ;857,  (1907). 

218 


219] 


CONCLUSION 


219 


law  at  all,  is,  however,  left  to  the  discretion  of  the  political 
departments  of  the  government.  In  the  United  States  the 
president  and  congress  act  in  such  circumstances  according  to 
their  views  of  national  policy.  They  may  ordinarily  folloAV  the 
practice  of  nations  in  making  these  decisions,  but  it  is  certain 
that  municipal  law  can  not  compel  them  to  do  so.  The  ques- 
tions are  political  in  character.  Municipal  law  adjusts  itself  in 
accordance  with  such  political  acts,  hut  does  not  control  them. 
The  judicial  and  administrative  organs  of  government  in  these 
matters  will  look  to  the  political  organs  for  guidance,  exclu- 
sively. They  will  not  look  beyond  them,  to  international  law. 
However,  even  in  rules  of  this  character,  where  international 
law  itself  does  not  look  down  to  the  officer  or  individual  upon 
whose  activity  the  elfectiveness  of  the  rule  must  ultimately 
depend,  municipal  law  may  perform  this  step.  It  may  specify 
and  enforce  obligations  upon  the  public  officers  and  subjects  of 
the  state  by  permanent  rule,  the  performance  of  which  will 
insure  the  observance  by  the  state  of  those  prescriptions  of 
international  law  directed  to  it.  Municipal  law  of  such  char- 
acter, filling  in  the  necessary  details  of  international  law  in 
reference  to  the  duties  of  officers  and  private  persons,  is  of  the 
greatest  importance  in  considering  the  legal  sanctions  for  the 
enforcement  of  international  law,  and  has  here  been  referred 
to  as  municipal  law,  supplementary  to  international  law. 

RULES  OF  INTERNATIONAL  LAW  PRESCRIBING  CONDUCT  FOR  PERSONS 

AND  OFFICERS 

The  second  group  of  rules  of  international  law  prescribes 
conduct  for  private  persons  and  public  officers.  Such  rules 
may  be  effectively  enforced,  may  be  rules  of  law  in  the  Aus- 
tinian  sense,  through  concurrent  enforcement  by  the  municipal 
law  of  all  civilized  countries.  Yet  they  continue  to  deserve  the 
name  international  because  it  is  on  account  of  the  pressure  of 
international  public  opinion  that  they  are  thus  concurrently 
enforced  by  states.^  States  are  held  internationally  responsible 

“Fitzjames  Stephen  remarks  that  international  law  is  not  law  so  far 
as  it  is  international  and  is  not  international  so  far  as  it  is  law.  (His- 
tory of  the  Criminal  Law  of  England,  2;35).  With  the  Aiistinian  concep- 
tion of  the  law  this  dilemma  is  inevitable  if  we  accept  the  literal  meaning 
of  the  term  international  law,  as  a law  between  states.  However,  by  ad- 
mitting as  rules  of  international  law  those  in  which  a vicarious  liability 
is  imposed  upon  states  for  acts  of  individuals,  we  believe  it  is  possible  to 
vindicate  the  term.  With  such  rules  the  incidence  of  the  liability  and  of 


220 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[220 


for  their  observance.  Many  rules  of  this  character  as  well  as 
rules  supplementary  to  international  law  are  enforced  through 
the  law  of  the  United  States.  The  obligation  to  enforce  them 
has  been  recognized  in  treaties,  statutes,  executive  orders  and 
judicial  decisions. 

(1)  Treaties. 

Much  of  international  law  has  been  included  in  treaties  to 
which  the  United  States  is  a party.  Especially  is  this  true  in 
reference  to  the  laws  of  war  and  neutrality  which  have  been 
to  a considerable  extent  codified  in  the  Hague  and  other  inter- 
national conventions.  It  must,  however,  be  emphasized  that 
although  declared  law  by  the  constitution,  treaties  may  embrace 
political  questions  incapable  of  enforcement  through  municipal 
law.  The  constitutional  provision  and  the  practice  of  courts 
and  executive  officers  in  giving  direct  effect  to  treaties,  so  far 
as  they  apply  to  individuals,  impart  a municipal  sanction  to  the 
rules  of  international  law  thus  defined. 

the  sanction  are  distinct.  The  rules  are  international  because  by  general 
international  practice,  states  are  held  liable.  Yet  the  rules  may  relate  to 
the  conduct  of  individuals  and  be  capable  of  sanction  by  state  authority. 
In  so  far  as  they  are  thus  sanctioned  by  concurrent  adoption  into  the  mu- 
nicipal law  of  states  they  would  conform  to  Austin’s  definition  of  law. 
It  seems  to  the  author  that  different  writers  on  the  legal  nature  of  inter- 
national law  have  written  to  cross  purposes  from  failure  to  reach  an  agree- 
ment as  to  whether  the  character  of  the  rule,  especially  the  responsibility 
it  implies,  or  the  character  of  the  sanction  is  the  criterion  of  international 
law.  It  is  too  clear  to  demand  refutation  that  if  no  rules  are  international 
law  except  those  enforceable  against  states,  international  law  can  not  be 
a part  of  municipal  law.  We  agree  that  “while  the  principles  which  inter- 
national law  embodies  are  the  product  of  international  usage  and  agree- 
ment, their  legal  force  as  rules  controlling  the  administration  of  justice 
between  litigants  is  derived  from  the  sanction  of  the  state  whose  justice 
the  courts  administer  and  by  whose  laws  the  courts  themselves  are 
created.”  (Willoughby,  Am.  Jour.  Int.  Law,  2;357).  This,  however, 
simply  states  that  effective  sanction  can  be  given  to  rules  only  through 
state  authorities,  and  if  this  sanction  is  given  the  rules  are  municipal  law. 
If  we  take  the  character  of  the  rule  rather  than  of  its  sanction  as  our  cri- 
terion of  international  law,  Willoughby’s  statement  does  not  prevent  the 
rule  being  at  the  same  time  a rule  of  international  law.  See  J.  B.  Scott 
and  W.  W.  Willoughby,  The  Legal  Nature  of  International  Law,  Am. 
Jour.  Int.  Law,  1 1831,  2;357,  and  an  effort  to  reconcile  these  two  articles. 
Note,  Harvard  Law  Review,  22;66.  See  also  John  Westlake,  Is  Interna- 
tional Law  a part  of  the  law  of  England?  Law  Quar.  Rev.  22)14. 


221] 


CONCLUSION 


221 


(2)  Statutes. 

Holland  calls  attention  to  the  fact  that  in  England  an 
“express  recognition  of  international  law  in  an  act  of  parlia- 
ment is  extremely  rare,”^  and  he  notes  only  five  cases*  in  which 
the  term  is  used  expressly.  In  the  United  States  statutes,  the 
use  of  the  term  appears  to  have  been  more  frequent.  “The 
law  of  nations,  “ which  is  generally  used  in  preference  to  the 
more  recent  term  “international  law,”  is  of  frequent  occur- 
rence.The  most  important  statutes  bearing  on  our  subject 

3T.  E.  Holland,  Studies  in  International  Law,  Oxford,  1898,  p.  193. 

*The  term  “law  of  nations”  is  used  in  the  act  relating  to  the  privi- 
leges of  ambassadors,  1709,  (7  Anne  c.  12),  the  prize  jurisdiction  of  the 
court  of  admiralty,  1815  (55  Geo.  III.  c.  160,  sec.  58),  The  Naval  Prize 
Act,  1864  (27-28  Viet.  c.  25),  and  “International  Law”  in  the  Territorial 
Waters  Jurisdiction  Act,  1878,  (41-42  Viet.  c.  73,  sec.  7)  and  the  Sea  Fish- 
eries act,  1883,  (46-47  Viet.  c.  22,  sec.  7).  Holland  also  notes  the  use  of 
certain  terms  peculiar  to  international  law  as  “neutral  ship,”  “proclama- 
tion of  neutrality,”  “belligerent”  in  a few  statutes.  Holland,  op.  cit.,  p. 

194. 

^The  term  “law  of  nations”  has  been  used  in  the  following  cases,  pos- 
sibly others  : A Resolution  of  Congress,  May  22,  1779,  states  that  the  United 
States  will  cause  the  “law  of  nations  to  be  most  strictly  observed,”  (Journ. 
Cong.  5;i6i,  Ford,  ed.  I4;635)  ; Aug.  2,  1779,  the  United  States  will  pay 
expenses  for  all  prosecutions  in  states  for  such  “transactions  as  may  be 
against  the  law  of  nations”,  (Journ.  Cong.  51232,  Ford,  ed.,  I4;9i4)  ; Nov. 
23,  1781,  recommends  that  state  legislatures  provide  for  the  punishment 
of  offenses  relating  to  violation  of  safe  conducts,  breaches  of  neutrality, 
assaults  upon  public  ministers,  infractions  of  treaties,  and  “the  preceding 
being  only  those  offenses  against  the  law  of  nations  which  are  most  ob- 
vious, and  public  faith  and  safety  requiring  that  punishment  should  be 
coextensive  with  all  crimes.  Resolved,  that  it  be  further  recommended 
to  the  several  states  to  erect  tribunals  in  each  state,  or  to  vest  ones  already 
existing  with  power  to  decide  on  offenses  against  the  law  of  nations  not 
contained  in  the  foregoing  enumeration,”  (Journ.  Cong.  7;i8i,  Ford,  ed., 
2i;ii37)  ; Dec.  4,  1781,  Courts  to  determine  prize  cases  by  “the  law  of  na- 
tions, according  to  the  general  usages  of  Europe,”  (Journ.  Cong.  7:189, 
Ford,  ed.,  21;  1158);  Constitution,  1789,  Congress  given  power  “to  define 
and  punish  piracies  and  felonies  committed  on  the  high  seas  and  offenses 
against  the  law  of  nations,”  (Art.  i,  sec.  8,  cl.  10)  ; Act,  Sept.  24,  1789, 
District  courts  given  jurisdiction  of  suits  brought  by  aliens  for  torts  in 
violation  of  “the  law  of  nations  or  of  treaty,”  and  the  supreme  court 
given  exclusive  jurisdiction  of  suits  against  public  ministers  “as  a court  of 
law  can  have  consistently  with  the  law  of  nations,”  (i  stat.  76,  sec.  9,13; 
rev.  stat.  sec.  563,  cl.  16,  687;  Judicial  code  of  1911,  act  March  3,  1911,  36 
stat.  1087,  sec.  24,  cl.  17,  233)  ; Act,  Apr.  30,  1790,  prescribes  criminal  pen- 


222 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[222 


may  be  roughly  divided  into  (1)  those  defining  the  jurisdiction 
of  courts,  (2)  those  creating  and  defining  the  functions  of 
public  officers,  (3)  those  designed  to  prevent  infractions  of 
duty  by  public  officers,  and  (4)  those  of  like  effect  in  reference 
to  private  persons. 

(1)  The  jurisdiction  of  courts  in  relation  to  ambassadors, 
consuls,  and  aliens;  over  offenses  against  foreign  states;  and 
over  prizes  of  war  have  been  prescribed  both  by  the  constitu- 
tion and  statutes,  often  in  terms  making  specific  reference  to 
international  law. 

(2)  Statutes  prescribing  the  functions  of  such  officers  as 
ambassadors,  ministers  and  consuls,  are  of  distinct  importance 
in  the  observance  of  international  law,  as  also  are  those  giving 
executive,  naval  and  military  officers  authority  to  perform  du- 
ties required  by  international  law,  such  as  expelling  foreign 
vessels  of  war  which  have  violated  neutral  rights,  and  extradit- 
ing criminals  when  required  by  treaty. 

In  these  two  cases,  statutes  frequently  contain  rules  of 
international  law  itself.  When  a statute  requires  a court  to 
refuse  jurisdiction  of  suits  against  foreign  ministers,  the  rule 
is  one  both  of  municipal  and  international  law. 

(3)  Statutes  frequently  provide  for  enforcing  the  duties 
of  officers.  Naval  and  military  officers  and  enlisted  men  are 
made  subject  to  military  law  and  to  civil  liability  for  damages 
in  certain  cases.  Requirements  of  bond  and  amenability  to 
criminal  penalties  for  specified  breaches  of  duty  are  specified 
in  the  case  of  diplomatic  officers  and  consuls. 

allies  for  assaulting  or  serving  out  process  against  public  ministers,  in 
“violation  of  the  law  of  nations,”  (i  stat.  117,  sec.  25,  28;  rev.  stat.  sec. 
4062,  4064)  ; Act,  June  5,  1794,  authorizes  the  president  to  expel  foreign 
vessels  in  cases  in  which  “by  the  law  of  nations”  they  ought  not  to  re- 
main, (i  stat.  384,  sec.  8,  Act,  Apr.  20,  1818,  3 stat.  447,  sec.  9 ; rev.  stat. 
sec.  5288;  Penal  Code  of  1910,  Act,  March  4,  1909,  35  stat.  1088,  sec.  15)  ; 
Act  March  3,  1819,  prescribes  punishment  for  committing  piracy  “as  de- 
fined by  the  law  of  nations,”  (3  stat.  513,  sec.  5;  rev.  stat,  sec.  5368;  Penal 
Code  of  1910,  sec.  290)  ; Act,  Aug.  29,  1842,  permits  federal  courts  to  re- 
lease on  habeas  corpus,  from  state  courts,  persons  claiming  any  right  “the 
validity  and  effect  of  which  depends  upon  the  law  of  nations,”  (5  stat. 
539;  rev.  stat  703)  ; Joint  Resolution,  March  4,  1915,  authorizes  the  presi- 
dent to  prevent  the  territory  of  the  United  States  being  used  as  a base  of 
military  operations  “contrary  to  the  obligations  imposed  by  the  law  of  na- 
tions,” (38  stat.  1226). 


223] 


CONCLUSION 


223 


(4)  In  the  same  manner  private  persons  are  made  subject 
to  criminal  prosecution  for  violating  neutrality,  for  assaulting 
foreign  ministers,  for  committing  offenses  against  foreign  states 
such  as  counterfeiting  foreign  securities,  or  for  committing 
piracy. 

Rules  in  these  two  classes  are  not,  for  the  most  part,  rules 
of  international  law,  but  rules  supplementary  to  international 
law.  International  law  does  not  prescribe  the  means  to  be  em- 
ployed by  the  state  in  compelling  persons  under  its  jurisdiction 
to  observe  the  rules  it  lays  down,  but  if  they  are  not  properly 
observed  it  holds  the  state  responsible.  The  enactment  and 
enforcement  of  such  rules  are  therefore  of  great  importance  in 
giving  legal  sanction  to  international  law.  Especially  are  such 
statutes  necessary  in  the  United  States  in  view  of  the  fact  that 
federal  courts  have  no  criminal  jurisdiction  except  in  so  far  as 
has  been  conferred  by  statute. 

Statutes  defining  boundaries,  recognizing  states,  declaring 
war,  making  appropriations  to  pay  indemnities,  etc.,  although 
of  great  international  importance  are  to  be  regarded  as  deter- 
minations by  congress  of  political  questions.  They  do  not  fur- 
nish permanent  rules  for  the  enforcement  of  international  obli- 
gations, although  they  may  recognize  specific  international 
duties. 

(3)  Executive  Orders. 

Executive  orders  have  been,  for  the  most  part,  similar  in 
character  to  statutes  of  the  third  class.  They  are  supplementary 
to  statutes,  generally  giving  administrative  rules  in  greater 
detail  for  the  guidance  of  public  officers.  Instructions  and  reg- 
ulations for  diplomatic,  consular,  naval  and  army  officers  are 
illustrations  of  rules  of  this  character. 

(4)  Judicial  Decisions. 

In  practice  the  courts  of  the  United  States  have  given 
most  marked  recognition  and  sanction  to  the  rules  of  interna- 
tional law.  American  courts  from  the  earliest  time  have  given 
voice  to  the  doctrine  that  international  law  is  law  in  the  United 
States  and  must  be  applied  by  the  courts  in  appropriate  cases. 
The  philosophy  basing  law  on  natural  rights,  so  prominent 
among  the  founders  of  the  Republic,  found  expression  through- 
out its  constitutional  system.  There  was,  it  is  true,  confusion 
of  thought  as  to  the  sources  of  natural  law.  The  voice  of  the 
people,  as  expressed  in  written  constitutions  limiting  the  powers 
of  government,  was  considered  the  final  criterion  by  many.  The 


224 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[224 


courts,  however,  have  tended  to  recognize  natural  rights,  based 
on  precepts  of  morality  or  reason,  to  have  legal  force,  even  when 
not  so  expressed.  Thus  while  enforcing  the  authority  of  constitu- 
tions as  against  legislatures  by  declaring  statutes  contrary  to 
them  void,  they  have  sometimes  expressed  the  opinion  that  cer- 
tain fields  of  legislation  are  barred  by  a higher  law,  not  ex- 
pressly stated  in  the  constitution.® 

The  theory  by  which  international  law  is  applied  by  the  courts 
bears  a very  close  relation  to  this  philosophy.  In  the  eighteenth 
and  early  nineteenth  centuries,  international  law  was  often 
considered  a branch  of  natural  law.'^  If  natural  law  was  a 

^Goshen  vs.  Stonington,  4 Conn.  Rep.  209,  225 ; Wilkinson  vs.  Leland, 
2 Pet.  627;  Terrett  vs.  Taylor,  9 Cranch  43;  Ham  vs.  McClaws,  i Bay  98 
(S.  Car.  1789)  Bowman  vs.  Middleton,  i Bay  254  (S.  Car.  1792)  ; Regents 
of  University  vs.  Williams,  9 Gill,  and  J.  365 ; Mayor  of  Baltimore  vs. 
State,  15  Md.  376;  Benson  vs.  Mayor  of  New  York,  10  Barb.  244;  Robin 
vs.  Hardaway,  Jeff.  Rep.  109,  113,  (Va.)  ; Page  vs.  Pendleton,  Wythe,  Rep., 
21 1,  (Va.  1793)  ; Quincy,  Rep.  200,  474,  App.  520,  (Mass.  1761-1772)  ; Scott 
vs.  Sanford,  19  How.  393,  556;  Downes  vs.  Bidwell,  182  U.  S.  244,  282.  The 
superior  authority  of  natural  law  was  denied  in  Calder  vs.  Bull,  3 Dali. 
386.  English  authority  for  a similar  doctrine  see.  Day  vs.  Savadge,  Ho- 
bart, 85,  87;  Calvin’s  Case,  7 Rep.  i;  City  of  London  vs.  Wood,  12  Mod. 
669,  687;  Bonham’s  Case,  8 Rep.  114  a,  4 Rep.  234;  Rawles  vs.  Mason,  Rich. 
Brownlow,  Rep.  187,  652.  See  Doctor  and  Student,  written  about  1540, 
London,  1746,  p.  14;  Blackstone  upholds  the  superior  authority  of  natural 
law,  (Commentaries,  i;4i)  but  admits  later  that  such  laws  can  not  render 
an  act  of  parliament  void  so  far  as  municipal  law  is  concerned.  (Ibid. 
i;9i).  James  Wilson,  Works,  J.  D.  Andrews,  ed.,  2 vols.,  Chicago,  1896, 
p.  415;  T.  M.  Cooley,  a Treatise  on  Constitutional  Limitations,  7th  ed., 
Boston,  1903,  p.  164;  J.  B.  Thayer,  Cases  on  Constitutional  Law,  2 vol., 
Cambridge,  1895,  i U ; A.  L.  Lowell,  Essays  on  Government,  Boston,  1889, 
p.  169;  A.  C.  McLaughlin,  The  Courts,  the  Constitution,  and  Parties,  Chi- 
cago, 1912,  pp.  63-99;  Brinton  Coxe,  An  Essay  on  Judicial  Power  and  Un- 
constitutional Legislation,  Philadelphia,  1893,  PP-  172,  189,  227,  234.  C.  G. 
Haines,  The  Conflict  over  Judicial  Power  in  the  United  States  to  1870, 
Columbia  University  Studies  in  History,  Economics  and  Public  Law, 
(1909),  35;  16-36;  C.  G.  Haines,  The  American  Doctrine  of  Judicial  Su- 
premacy, New  York,  1914,  pp.  18-24,  C.  H.  Mclllwain,  The  High  Court 
of  Parliament,  N.  Y.,  1910,  pp.  97-108. 

■^Pufendorf,  (1632-1694),  Burlamaqui,  (1694-1748),  and  the  modern 
writer  Lorimer  derived  international  law  exclusively  from  natural  law. 
Blackstone  takes  a similar  view.  Commentaries,  i ;43,  4;36.  For  other 
writers  in  the  “natural  law  school”  of  international  law  see  Bonfils,  op. 
cit.,  p.  64;  A.  S.  Hershey,  History  of  International  law  since  the  Peace 
of  Westphalia,  Am.  Jour.  Int.  Law,  6;30,  (1912).  For  American  writers 


225] 


CONCLUSION 


225 


higher  law  to  which  courts  must  give  effect,  so  was  international 
law,  although,  in  the  United  States,  judicial  opinion  seems 
never  to  have  gone  the  length  of  holding  that  it  must  be  applied 
even  when  in  derogation  of  express  statute.® 

Chief  Justice  Marshall  always  maintained  that  the  courts 
apply  national  law  alone,  but  by  the  regard  which  he  showed 
for  international  comity,®  and  by  the  stand  he  took  that  inter- 
national law  is  incorporated  into  the  law  of  the  United  States 
and  must  be  applied  unless  expressly  changed  by  legislation, 
he  showed  the  influence  of  the  theory  of  a higher  law.^® 

asserting  this  view,  see  James  Wilson,  Works,  1128,34;  W.  J.  Duane,  The 
Law  of  Nations  investigated  in  a popular  manner  addressed  to  the  farm- 
ers of  the  United  States,”  Philadelphia,  1809,  p.  7-8.  Discussion  of  “The 
Influence  of  the  law  of  nature  upon  international  law  in  the  United  States,” 
Jesse  Reeves,  Am.  Jour.  Int.  Law,  3;547,  (1909). 

®The  obligation  of  courts  to  apply  international  law  was  derived  from 
the  theory  of  natural  law  in  a number  of  cases  of  the  latter  eighteenth 
century.  See  Rutgers  vs.  Waddington,  Mayor’s  court  of  N.  Y.,  1784,  Thay- 
ers, cases,  i;63;  Res  Publica  vs.  DeLongchamps,  i Dali,  in,  (Pa.  1784); 
In  re  Henfield,  Fed.  Cas.  6360;  Ware  vs.  Hylton,  3 Dali.  199.  British  Prize 
courts  sometimes  asserted  that  they  must  apply  international  law  even 
when  conflicting  with  executive  orders.  The  Recovery,  6 Rob.  348;  The 
Maria,  i Rob.  350;  Le  Louis,  2 Dods.  239;  The  Annapolis,  30  L.  J.  Pr.  M. 
and  Ad.  201 ; Phillimore,  International  Law,  3 ; sec.  436.  “In  the  Minerva 
(circa  1807)  Sir  J.  Mackintosh,  then  Recorder  of  Bombay,  and  acting  un- 
der a Commission  of  Prize,  spoke  of  its  being  the  duty  of  the  judge  to 
disregard  the  instructions,  supposing  them  illegal,  and  to  consult  only  that 
universal  law  to  which  all  civilized  Princes  and  States  acknowledge  them- 
selves to  be  subject.”  Holland,  Studies,  p.  197,  citing  Life  of  Sir.  J.  Mackin- 
tosh, I ;3i7.  See  also  supra  p.  147. 

^Schooner  Exchange  vs.  McFaddon,  7 Cranch  116. 

i^Talbot  vs.  Seaman,  i Cranch  i,  37;  Murray  vs.  The  Charming 
Betsey,  2 Cranch  64,  118;  The  Nereide,  9 Cranch  388,  423;  The  Antelope, 
10  Wheat.  66,  120.  The  reception  of  international  law  into  the  law  of  the 
United  States  has  been  based  on  three  theories,  or  four  if  we  include  the 
one  just  mentioned  which  really  asserts  the  authority  of  a “higher  law” 
superior  to  international  law.  These  are:  (i)  International  law  was  part 
of  the  common  law  and  was  accepted  with  it.  “The  first  craft  that  car- 
ried an  English  settler  to  the  new  world  was  freighted  with  the  common 
law,  of  which  the  law  of  nation  was  and  is  a part.”  J.  B.  Scott,  Am.  Jour. 
Int.  Law,  1 1857,  (1907);  “It  is  indubitable  that  the  customary  law  of 
European  nations  is  a part  of  the  common  law,  and  by  adoption,  that  of 
the  United  States,"  A.  Hamilton,  Letters  of  Camillus,  No.  20,  Works, 
Lodge,  ed.,  9 vols.,  N.  Y.  5 ;89.  (2)  International  law  was  impliedly  re- 

ceived by  the  terms  of  the  constitution.  “The  Federal  constitution  pro- 
vides that  congress  shall  have  power  to  define  and  punish  offenses  against 


226  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [226 

Throughout  the  history  of  the  United  States,  the  courts  have 
in  theory  maintained  this  view,  which  was  never  more  emphati- 
cally pronounced  than  in  1900  by  the  supreme  court  in  the  case 
of  the  Paquete  Habanad^  And  that  the  courts  have  in  practice 
made  serious  elforts  to  discover  the  rule  of  international  law 
applicable  to  the  case  in  hand,  is  indicated  by  the  character  of 
the  formal  sources  of  law  to  which  they  have  habitually  turned 
in  rendering  opinions  upon  facts  appearing  to  involve  interna- 
tional law.  Thus  the  works  of  publicists,  of  which  those  of  Vat- 
tel,  Bynkershoek,  Grotius,  Wheaton  and  Kent  are  probably  the 
most  frequent,  have  been  freely  cited.^^  Treaties  have  been 
frequently  adverted  to,  as  well  as  statutes  and  court  decisions 
of  foreign  countries,  of  which  those  of  Great  Britain  are  by 
far  the  most  numerous.^  ^ Historical  accounts  of  international 

the  law  of  nations  and  to  make  rules  concerning  captures  on  land  and 
water.  Furthermore  it  is  declared  that  treaties  made  under  the  author- 
ity of  the  United  States  shall  be  the  supreme  law  of  the  land.  The  effect 
of  these  clauses  which  recognize  the  existence  of  a body  of  international 
laws  and  the  grant  to  congress  of  the  power  to  punish  offenses  against 
them,  the  courts  have  repeatedly  held  is  to  adopt  these  laws  into  our 
municipal  law  en  bloc,  except  where  congress  or  the  treaty  making  power 
has  expressly  changed  them.”  W.  W.  Willoughby,  Am.  Jour.  Int.  Law, 
2 ',365.  (3)  International  law  itself  and  the  privilege  of  membership  in 

the  family  of  nations,  put  the  courts  of  the  United  States  under  an  obliga- 
tion to  apply  international  law  in  appropriate  cases.  “The  statesmen  and 
jurists  of  the  United  States  do  not  regard  international  law  as  having  be- 
come binding  on  their  country  through  the  intervention  of  any  legislature. 
They  do  not  believe  it  to  be  of  the  nature  of  immemorial  usage,  ‘of  which 
the  memory  of  man  runneth  not  to  the  contrary.’  They  look  upon  its 
rules  as  a main  part  of  the  conditions  on  which  a state  is  originally  re- 
ceived into  the  family  of  civilized  nations. If  they  put  it  in  another 

way  it  would  probably  be  that  the  state  which  disclaims  the  authority  of 
international  law  places  herself  outside  the  circle  of  civilized  nations.” 
Sir  H.  S.  Maine,  International  Law,  N.  Y.,  1887,  p.  37.  To  similar  ef- 
fect, Phillimore,  op.  cit.  i;78;  Secretary  of  State  Jefferson  to  Genet, 
French  Minister,  1793,  Am.  St.  Pap.  For.  Rel.  i;i5o;  Assist.  Secretary  of 
State  Rives  to  Mr.  McGarr,  For.  Rel.  1888,  pt.  i,  pp.  490,  492;  Moore’s  Di- 
gest, i;i-ii;  See  also  cases  cited,  supra  p.  16,  note  10  and  statutes  cited 
p.  221,  note  5. 

i^The  Paquete  Habana,  175  U.  S.  694,  (1899). 

^^Other  publicists  frequently  quoted  have  been  Pufendorf,  Ruther- 
ford, Wicquefort,  Wolf,  Halleck,  Calvo,  Perels,  Hall. 

^^On  the  authority  of  British  prize  precedents  in  United  States  courts 
see  Chief  Justice  Marshall  in  Thirty  Hogsheads  of  Sugar  vs.  Boyle,  9 
Cranch  191,  (1815).  During  the  Civil  war  Lord  Stowell’s  prize  decisions 
were  relied  on  almost  entirely. 


227] 


CONCLUSION 


227 


practice  have  also  sometimes  been  cited  as  evidence  of  the  rule 
of  international  law  on  the  subject  in  question/^ 

The  general  principles  which  the  courts  of  the  United  States 
have  applied  in  cases  involving  international  law  may  be  sum- 
marized as  follows:  (1)  international  law  should  furnish  the 
rule  of  decision  in  all  appropriate  cases  where  there  is  no  con- 
stitutional provision,  statute,  or  executive  order,  authorized  by 
statute,  in  direct  conflict;  (2)  treaties  are  an  immediate  source 
of  law  on  a par  with  statutes,  a later  treaty  overruling  an  earlier 
statute  and  vice  versa;  (3)  statutes  and  executive  orders  when 
appearing  to  conflict  with  international  law  should  be  inter- 
preted, if  possible,  in  harmony  with  the  rule  of  international 
law. 

It  must  always  be  borne  in  mind  that  these  rules  can  only 
apply  to  that  portion  of  customary  and  conventional  interna- 
tional law  which,  by  its  nature,  is  applicable  immediately  to 
controversies  between  parties,  subject  to  the  jurisdiction  of  the 
court.  It  is  therefore  of  the  highest  importance  to  consider 
what  flelds  of  international  law  the  courts  consider  in  this  class. 
Clearly  if  the  court  conceived  of  the  bulk  of  international  law 
as  rules  prescribing  conduct  for  the  sovereign  power  alone,  that 
is  as  ‘‘political  questions”,  these  liberal  principles  would  be  of 
little  practical  effect. 

The  view  of  the  courts  in  this  respect  can  only  be  inferred 
from  their  practice.  We  have,  therefore,  given  much  considera- 
tion in  this  thesis  to  the  question,  “From  what  fields  of  inter- 
national law  have  the  courts  actually  drawn  rules  for  the  deci- 
sion of  cases?” 

These  fields  in  which  international  law  has  been  actually 
applied  by  the  courts  may  be  classified  as  (1)  cases  relating  to 
jurisdiction,  (2)  cases  relating  to  the  rights  of  the  inhabitants 
of  newly  acquired  territory,  and  (3)  prize  and  maritime  cases. 
By  defining  the  limits  of  national  jurisdiction,  according  to  in- 
ternational law,  by  refusing  jurisdiction  of  extraterritorial  of- 
fenses, and  suits  against  foreign  sovereigns;  by  refusing  to  give 
extraterritorial  effect  to  laws  and  by  assuming  jurisdiction  over 
prizes  of  war,  courts  have  enforced  duties  of  international  law. 
The  same  is  true  where  courts  have  supported  vested  rights  and 
applied  the  existing  law  for  the  benefit  of  the  inhabitants  of 
acquired  territory.  In  determining  prize  cases,  the  courts  have 
in  general  made  a faithful  effort  to  apply  international  law  as 

the  Paquete  Habana,  175  U.  S.  694,  Justice  Gray  makes  exten- 
sive citations  from  all  of  the  kinds  of  sources  mentioned. 


228 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[228 


their  theory  demanded,  although  exception  should  be  made  in 
some  of  the  Civil  war  cases.  So  long  as  international  law  has 
to  be  applied  by  national  tribunals  it  can  not  but  be  warped 
by  its  proximity  to  considerations  of  policy  and  the  inevitable 
partisanship  of  officers,  who  owe  a primary  duty  to  one  of  the 
litigant  states. 

DIVISION  OP  POWER  BETWEEN  STATE  AND  NATIONAL  GOVERNMENTS 

The  division  of  power  between  the  state  and  national  gov- 
ernments has  at  times  resulted  in  an  inability  to  perform  obli- 
gations required  by  international  law.  The  state  governments, 
not  having  international  relations,  and  not  feeling  the  pressure 
of  international  public  opinion,  cannot  be  relied  on  to  enforce 
duties  of  international  law.  It  would  seem,  however,  that  under 
the  constitution  the  national  government  may  exercise  all  pow- 
ers necessary  to  make  treaties  and  obligations  of  international 
law  effective.  The  difficulty  lies  in  the  failure  of  congress  to  act, 
rather  than  in  a constitutional  impossibility. 

The  United  States  has  provided  in  its  municipal  law  for 
the  enforcement  of  numerous  rules  of  international  law.  How 
completely  the  field  is  covered  we  will  not  venture  to  assert. 
To  define  exactly  what  obligations  are  actually  imposed  by 
international  law  at  any  particular  time  is  almost  im- 
possible. The  field  of  international  law  is  constantly 
growing.  Matters  yesterday  considered  entirely  internal  to- 
day entail  international  responsibility  and  are  regulated 
by  international  law.  Judicial  and  administrative  officers 
must  therefore  take  continuous  cognizance  of  the  devel- 
opment of  international  law  to  insure  that  they  apply  it 
in  appropriate  cases,  so  far  as  compatible  with  their  duties  as 
national  officers ; and  congress  must  be  constantly  on  the  lookout 
for  new  international  duties  which  require  supplementary  leg- 
islation to  be  made  effective.  The  failure  to  provide  such 
necessary  municipal  measures  does  not  relieve  the  state  from 
international  responsibility  if  a breach  of  international  law 
should  occur. 

IMPORTANCE  OP  MUNICIPAL  ENFORCEMENT  OF  INTERNATIONAL  LAW 

The  municipal  enforcement  of  international  law  is  a matter 
of  great  importance  from  the  standpoint  both  of  international 
law  and  of  national  policy.  There  are  no  administrative  or 
judicial  authorities  with  coercive  power  except  those  of  terri- 
torial states.  The  growth  of  international  unions  and  admin- 


229] 


CONCLUSION 


229 


istrative  organs  has  been  rapid  in  the  last  few  years,  but  such 
bodies  still  rely  on  states  for  effectiveness.  Power  is  essential 
to  effective  sanction^®  and  power  is  still  controlled  by  states 
exclusively.  Eules  of  international  law  can  not,  therefore,  be 
effective  unless  enforced  by  state  authorities  as  municipal  law.^® 
National  policy  likewise  dictates  the  provision  of  municipal 
measures  for  enforcing  international  obligations.  Since  the 
Alabama  claims  arbitration  it  has  been  clear  that  lack  of  such 
laws  will  not  relieve  the  state  from  responsibility.  Liability  to 
indemnity,  reprisal  or  war  can  only  be  avoided  by  a strict  ob- 
servance of  international  duty,  and  this  observance  can  in  many 
cases  be  assured  only  by  adequate  provisions  of  municipal  law. 

i^Robert  Lansing,  Notes  on  Sovereignty  in  a State,  Am.  Jour,  Int. 
Law,  I ; 105-128,  297-320,  emphasizes  the  importance  of  physical  power  in 
the  sanction  of  law. 

i^Though  not  incorporated  into  municipal  law,  rules  of  international 
law  may  be  law  in  the  sense  of  being  rules  of  great  authority  generally 
observed.  They  would  occupy  the  position  which  Maine  assigns  to  the 
Brehon  laws  of  ancient  Ireland.  “The  Law  of  Distress  was  clearly 
enough  conceived  by  the  Brehon  lawyers,  but  it  depended  for  the  practi- 
cal obedience  which  it  obtained  on  the  aid  of  public  opinion  and  of  popu- 
lar respect  for  a professional  caste.  Its  object  was  to  force  disputants  to 
submit  to  what  was  rather  an  arbitration  than  an  action,  before  a Brehon 
selected  by  themselves,  or  at  most  before  some  recognized  tribunal  ad- 
vised by  a Brehon.”  Sir  H.  S.  Maine,  Early  History  of  Institutions, 
p.  286.  See  also  ibid.  pp.  52,  252. 


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1901. 


230 


231] 


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British  and  Foreign  State  Papers,  London,  1841 — (cited  Br.  and  For. 
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British  Statutes.  Statutes  at  Large,  1215-1869,  Danby  Pickering  and 
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Duane,  W.  J.,  The  Law  of  Nations  investigated  in  a Popular  Man- 
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Fairlie,  John  A.,  The  National  Administration  of  the  United  States 
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Snow,  Freeman,  Cases  and  Opinions  on  International  Law  with  notes 
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Spencer,  Herbert,  Social  Statics  together  with  Man  Versus  the  State, 
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Stephen,  James  Fitzj'ames,  History  of  the  Criminal  Law  in  England, 
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Stockton,  C.  H.,  The  United  States  Naval  War  Code  of  1900,  General 
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Story,  Joseph,  Commentaries  on  the  Conflict  of  Laws,  8th  ed.,  M.  M. 
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Stowell,  Ellery  C.,  Consular  Cases  and  Opinions,  Washington,  1909. 

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Takahashi,  Sakuye,  International  Law  Applied  to  the  Russo-Japanese 
War,  New  York,  1908. 

Treaties  and  Conventions  concluded  between  the  United  States  and 
other  powers,  1776-1909,  W.  M,  Malloy,  ed.,  2 vols.,  Supplement  to  1913, 
G.  Charles,  ed.,  (cited  Malloy  or  Charles). 

Thayer,  J.  B.,  Cases  on  Constitutional  Law,  2 vols.,  Cambridge,  1895. 

Treitschke,  Heinrich,  von.,  Politik,  Max  Cornicelius,  ed.,  2 vols.,  Leip- 
sic,  1899. 

Triepel,  Heinrich,  VSlkerrecht  und  Landesrecht,  Leipsic,  1899. 

Tucker,  G.  F.,  and  C.  W.  Blood,  The  Federal  Penal  Code  in  force 
January  i,  1910,  act  March  21,  1909,  35  stat.  1088,  N.  Y.,  1910. 

Twiss,  Sir  Travers,  ed..  The  Black  Book  of  the  Admiralty,  4 vols., 
Rolls  Series,  No.  55,  London,  1871-1876. 

The  Law  of  Nations  considered  as  Independent 

Political  Communities ; on  the  rights  and  duties  of  nations  in  time  of 
Peace,  Oxford,  1884. 


238  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  [238 

United  States  Supreme  Court  Reports,  1875 — vols.  91 — (cited  U.  S.)- 
See  also  under  Court  Reports. 

Upton,  Francis  H.,  Law  of  Nations  effecting  Commerce  During  War, 
3rd  ed.,  N.  Y.,  1863. 

Walker,  Thomas  A.,  The  Science  of  International  Law,  London,  1893. 
Wallace,  Supreme  Court  Reports,  1843-1861,  23  vols.,  (cited  Wall.). 
Westlake,  John,  A Treatise  on  Private  International  Law,  5th  ed., 
London,  1890. 

, Chapters  on  the  Principles  of  International  Law, 

Cambridge,  1894. 

, International  Law,  2nd  ed.,  2 vols.,  Cambridge,  1910. 

, Is  International  Law  a Part  of  the  Law  of  Eng- 
land? Law  Quar.  Rev.,  22114. 

Wharton,  Francis,  A Treatise  on  the  Conflict  of  Laws,  3rd  ed.,  2 vols., 
N.  Y.,  1905. 

Wheaton.  Henry,  Elements  of  International  Law,  3rd  ed.,  A.  C.  Boyd, 
ed.,  London,  1889. 

, History  of  the  Law  of  Nations  in  Europe  and 

America,  N.  Y.,  1845. 

, Supreme  Court  Reports,  1816-1828,  12  vols.,  (cited 

Wheat.). 

Willoughby,  W.  W.,  The  American  Constitutional  System,  N.  Y., 

1904. 

, The  Legal  Nature  of  International  Law,  Am.  Jour. 

Int.  Law,  2;357,  (1908). 

Wilson,  George  Grafton,  Handbook  of  International  Law,  St.  Paul, 
1910. 

Wilson,  James,  Works,  J.  W.  Andrews,  ed.,  2 vols.,  Chicago,  1896. 


LIST  OF  CASES 


Abra  Silver  Mining  Co.,  La,  vs.  U.  S.,  175  U.  S.  423,  (1899),  pp.  83,  102. 
Active,  The,  Fed.  Cas.,  759,  p.  148. 

Adela,  The,  6 Wall.  266,  (1867),  pp.  108,  134,  152, 

Adeline,  The  Schooner,  9 Cranch  244,  pp.  170,  191,  192. 

Admiral,  The,  3 Wall.  603,  pp.  151,  152. 

Adula,  The,  176  U.  S.  361,  p.  151. 

Adventure,  The,  8 Cranch  221,  (1814),  pp.  149,  188. 

Advocate,  The,  Blatch.  142,  p.  191. 

Airhart  vs.  Massieu,  98  U.  S.  491,  p.  62. 

Aix-la-Chappelle-Maestricht  R.  R.  Co.  vs.  Thewis,  Dutch  Government 
Intervener,  Am.  Jour.  Int.  Law,  8;858,  907,  p.  66. 

Alabama  Arbitration,  The,  Moore,  Int.  Arb.,  495,  4057,  4639,  p.  119. 
Alabama  vs.  Georgia,  25  How.  505,  p.  31. 

Alerta,  The  Brig,  9 Cranch  359,  (1815),  pp.  132,  134,  136,  191. 

Alexander,  The,  8 Cranch  169,  (1814),  p.  162. 

Alexander,  The,  60  Fed.  Rep.  914,  p.  32. 

Alexander,  The,  75  Fed.  Rep.  519,  p.  33. 

Alexander’s  Cotton,  Mrs.,  2 Wall.  404,  pp.  158,  173. 

Alexander  vs.  The  Duke  of  Wellington,  2 Russ,  and  Mylne  54,  (1831), 
p.  193- 

Alexander  vs.  Roulet,  13  Wall.  386,  p.  60. 

Alfred,  The,  3 Dali.  307,  (1796),  pp.  118,  135,  136. 

Alleganean,  The,  Moore,  Int.  Arb.,  4337,  p.  32. 

Ambrose  Light,  The,  25  Fed.  Rep.  408,  (1885),  pp.  20,  35,  191. 

Amedie,  The,  i Act.  240,  (1810),  p.  35. 

Amelia  Island  Case,  Moore’s  Digest,  i;i73,  2;4o6,  p.  89. 

American  Banana  Co.  vs.  United  Fruit  Co.,  213  U.  S.  347,  (1909),  pp.  12,. 
21,  42,  44,  70. 

American  Insurance  Co.  vs.  Canter,  i Pet.  51 1,  (1828),  pp.  25,  60,  61. 
Amiable  Isabella,  The,  6 Wheat,  i,  p.  84. 

Amiable  Nancy,  The,  i Paine  ii,  p.  181. 

Amiable  Nancy,  The,  3 Wheat.  546,  p.  169. 

Amistad,  The,  15  Pet.  518,  p.  35. 

Amistad  de  Rues,  La,  5 Wheat.  385,  (1820),  pp.  108,  136,  137. 

Amity,  The,  Fed.  Cas.,  9741,  pp.  135,  136. 

Amy  Warwick,  The,  2 Sprague  123,  pp.  166,  192. 

Andromeda,  The,  2 Wall.  48,  p.  151. 

Ann  Green,  The  Ship,  i Gall.  274,  (1812),  pp.  159,  164. 

Anna,  The,  5 Rob.  373,  (1805),  p.  24.  ^ 

Anna  Maria,  The,  2 Wheat.  327,  p.  169. 

Annapolis,  The,  30  L.  J.,  Pr.  M.  and  Ad.,  201,  (1861),  pp.  147,  225. 

Anne,  The,  3 Wheat.  435,  (1818),  pp.  108,  134,  184. 

Antonia  Johanna,  The,  i Wheat.  159,  (1816),  pp.  164,  169,  193. 

239 


240 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[240 


Antelope,  The,  lo  Wheat.  66,  (1825),  pp.  30,  36,  191,  225. 

Appollon,  The,  9 Wheat.  362,  (1824),  pp  30,  31,  40,  65,  133,  169,  184. 
Arguelles,  Case  of,  Moore’s  Digest,  4;249,  p.  90. 

Ariadne,  The,  2 Wheat.  143,  pp.  161,  164. 

Ariel,  The,  ii  Moore  P.  C.  119,  (1857),  p.  159. 

Armendiez  vs.  Stillman,  54  Tex.  623,  p.  75. 

Armstrong  vs.  U.  S.,  182  U.  S.  243,  p.  60. 

Arrabella,  The,  and  the  Madeira,  2 Gall.  368,  pp.  186,  191. 

Arrogante  Barcelones,  7 Wheat.  496,  (1822),  p.  136. 

Atalanta,  The,  3 Wheat.  409,  (1818),  p.  160. 

Atalanta,  The,  6 Rob.  440,  (1808),  p.  157. 

Attorney  General  of  the  United  States,  Opinions, 

Berrien,  2 op.  378,  (1830),  p.  52. 

Black,  9 op.  7,  (1857),  p.  76;  9 op.  286,  (1859),  P-  28. 

Bradford,  i op.  47,  (1794),  PP-  55,  77,  139- 
Butler,  2 op.  725,  (1835),  P-  52;  3 op.  254,  (1837),  P-  79- 
Cushing,  6 op.  18,  (1854),  P-  52’,  6 op.  148,  (1854),  p.  92;  6 op.  209, 
(1854),  p.  92;  6 op.  217,  (1854),  p.  91;  6 op.  296,  (1854),  p.  85; 

6 op.  367,  (1854),  p.  52;  6 op.  638,  (1854),  p.  159;  7 op.  1 12, 
(1855),  p.  55;  7 op.  123,  The  Sitka,  (1855),  pp.  65,  140,  186; 

7 op.  229,  (1855),  p.  104;  7 op.  362,  (1855),  p.  51;  7 op.  377, 
(1855),  p.  1 17;  7 op.  503,  (1855),  p.  40;  7 op.  538,  (1855),  p.  159; 

8 op.  73,  (1856),  pp.  55,  140;  8 op.  169,  (1856),  p.  52;  8 op.  175, 
(1856),  p.  31;  8 op.  380,  (1857),  p.  53. 

Garland,  18  op.  219,  (1885),  p.  40. 

Griggs,  22  op.  310,  408,  514,  520,  546,  (1899),  pp.  58,  66;  23  op.  181, 
pp.  58,  59. 

Grundy,  3 op.  377,  (1838),  pp.  149,  188. 

Harmon,  21  op.  267,  273,  (1895),  pp.  117,  140. 

Johnson,  5 op.  92,  p.  118. 

Knox,  23  op.  451,  (1901),  pp.  58,  59. 

Lee,  I op.  63,  (1797),  P.  1 17;  I op.  71,  (i797),  P-  77;  i op.  87,  89, 
(1799),  P.  55- 

Legare,  3 op.  661,  (1841),  p.  90;  3 op.  747,  (1841),  p.  118. 

Lincoln,  i op.  106,  (1802),  p.  78;  i op.  iii,  (1802),  p.  194. 

Nelson,  4 op.  201,  (1843),  p.  91;  4 op.  240,  (1843),  p.  91 ; 4 op.  285, 

(1843),  p.  28;  4 op.  332,  (1844),  p.  78;  4 op.  336,  (1844),  pp.  77, 

1 18,  120,  137,  142. 

Randolph,  i op.  30,  (i794),  P-  29;  i op.  33,  The  Grange,  (i794),  P- 
134;  I op.  321,  (1795),  P.  32. 

Richards,  (acting),  22  op.  13,  (1897),  p.  66. 

Rush,  I op.  17s,  (1814),  p.  162. 

Speed,  II  op.  445,  (1866),  p.  191. 

Stanbery,  12  op.  72,  (1866),  p.  215. 

Taft,  15  op.  178,  (1878),  p.  54. 

Wickersham,  29  op.  322,  (1912),  p.  42. 

Williams,  14  op.  285,  p.  41. 


241] 


LIST  OF  CASES 


241 


Wirt,  I op.  463,  (1821),  p.  195;  I op.  483,  (1821),  p.  60;  I op.  584, 
(1822),  p.  35. 

Aurora,  The,  8 Cranch  203,  p.  161. 

Baigorry,  The,  2 Wall.  474,  pp.  151,  152,  158. 

Baiz,  In  re,  135  U-  S.  403,  (1889),  pp.  51,  52,  76,  77. 

Baldy  vs.  Hunter,  171  U.  S.  388,  (1890),  p.  63. 

Baltica,  The,  ii  Moore,  P.  C.  141,  (1857),  p.  159. 

Banda  and  Kirwee  Booty,  The,  L.  R.  i Ad.  and  Ecc.  109,  (1866),  pp.  192, 
193,  206. 

Barbuit’s  Case,  Forrester’s  Cas.  Temp.  Talbot,  281,  (1737),  p.  52. 

Bas  vs.  Tingy,  4 Dali.  37,  (1800),  p.  29. 

Beers  vs.  Ark.,  20  How.  527,  p.  43. 

Belfast,  The,  7 Wall.  625,  p.  189. 

Bello  Corrunes,  The,  6 Wheat.  152,  (1821),  pp.  35,  in,  118,  136. 

Benito  Estenger,  The,  176  U.  S.  568,  (1899),  pp.  158,  160. 

Benson  vs.  McMahon,  127  U.  S.  457,  (1880),  p.  91. 

Benson  vs.  Mayor  of  New  York,  10  Barb.  244,  p.  224. 

Bentzen  vs.  Boyle,  see  Thirty  Hogsheads  of  Sugar  vs.  Boyle. 

Bermuda,  The,  3 Wall.  514,  (1865),  pp.  152,  155,  156,  161. 

Betsey,  The,  Fed.  Cas.  17,750,  (i799),  P.  135- 
Betsey,  The,  i Rob.  29,  p.  151. 

Betsey  and  Polly,  The,  38  Ct.  Cl.  30,  (1902),  p.  156. 

Betsey,  The  Sloop,  3 Dali.  6,  (1794),  pp.  122,  131,  132,  190. 

Betty  Cathcart,  The,  3 Dali.  288,  (note).  Fed.  Cas.  9,742,  p.  135. 

Bird,  The,  38  Ct.  Cl.  228,  (1903),  p.  I55- 
Bissell  vs.  Heyward,  96  U.  S.  581,  p.  63. 

Bonham’s  Case,  8 Rep.  114a,  4 Rep.  234,  p.  224. 

Bothnea  and  Jarnstoff,  The,  2 Gall.  88,  p.  184. 

Bottiller  vs.  Dominguez,  130  U.  S.  238,  p.  84. 

Bowman  vs.  Middleton,  i Bay  254,  (S.  Car.  1792),  p.  224. 

Boynton  vs.  Blaine,  139  U.  S.  306,  p.  102. 

Breedlove  vs.  Nicollet,  7 Pet.  413,  pp.  78,  104. 

Briggs  vs.  U.  S.,  143  U.  S.  346,  (1892),  p.  206. 

British  Consul  vs.  The  Nancy,  see  The  Nancy. 

British  Prisoners,  Case  of  the,  i Wood  and  Min.  66,  (1845),  P-  pi- 
Brothers,  The,  Fed.  Cas.  9,743,  (i799),  P-  135- 

Brown  vs.  U.  S.,  8 Cranch  no,  (1814),  pp.  174,  192,  201,  205,  215,  216. 
Brown  vs.  U.  S.,  5 Ct.  Cl.  571,  p.  100. 

Buena  Ventura,  The,  vs.  U.  S.,  175  U.  S.  384,  pp.  169,  204. 

Buvot  vs.  Barbuit,  see  Barbuit’s  Case. 

Cabrera,  Ex  Parte,  i Wash.  C.  C.  232,  pp.  51,  77. 

Calder  vs.  Bull,  3 Dali.  386,  p.  224. 

Caledonian,  The,  4 Wheat.  100,  p.  164. 

Calvin’s  Case,  7 Rep.  i,  p.  224. 

Cargo  of  the  Ship  Emulous,  i Gall.  562,  p.  216. 


242 


INTERNATIONAL  LxVW  AND  MUNICIPAL  LAW 


[242 


Carlisle  vs.  U.  S.,  i6  Wall.  147,  pp.  78,  100,  206. 

Carlos  F.  Roses,  The,  177  U.  S.  655,  (1809),  pp.  166,  193. 

Carneak  vs.  Banks,  10  Wheat.  182,  p.  84. 

Carolina,  The,  4 Rob.  256,  p.  157. 

Caroline,  The,  6 Rob.  461,  (1808),  p.  158. 

Carondolet,  The,  37  Fed.  Rep.  799,  (1899),  p.  118. 

Carrington  vs.  Merchant’s  Insurance  Co.,  8 Pet.  494,  p.  156. 

Cassius,  Le,  see  Ketland  vs.  The  Cassius,  U.  S.  vs.  Peters. 

Charge  to  Grand  Jury,  McLean,  Fed.  Cas.  18,265,  (1838),  p.  117. 

Charge  to  Grand  Jury,  McLean,  Fed.  Cas.  18,267,  (1851),  p.  117. 
Charming  Betsey,  The,  2 Cranch  64,  (1804),  pp.  16,  30,  148,  158,  169,  170, 
192,  225. 

Chavez  vs.  U.  S.,  175  U.  S.  552,  p.  24. 

Cheshire,  The,  3 Wall.  231,  pp.  151,  152. 

Chester  vs.  The  Experiment,  see  The  Experiment. 

Chicago  Pacific  R.  R.  Co.  vs.  McGlenn,  114  U.  S.  542,  p.  61. 

Chin  A On,  In  re,  18  Fed.  Rep.  506,  p.  84. 

Chinese  Exclusion  Cases,  130  U.  S.  581,  (1889),  P-  83. 

Chirac  vs.  Chirac,  2 Wheat.  259,  (1817),  pp.  82,  84,  85. 

Chisholm  vs.  Georgia,  2 Dali.  419,  (1793),  p.  43. 

Church  vs.  Hubbart,  2 Cranch  187,  (1804),  pp.  29,  133. 

Circassian,  The,  2 Wall.  136,  pp.  151,  152. 

City  of  London  vs.  Wood,  12  Mod.  669,  p.  224. 

City  of  Mexico,  The,  28  Fed.  Rep.  148,  (1886),  p.  118. 

Clark  vs.  Cretico,  i Taunt.  106,  (1808),  p.  52, 

Coffee  vs.  Grover,  123  U.  S.  i,  (1887),  p.  62. 

Coleman  vs.  Tennessee,  97  U.  S.  509,  (1878),  p.  141. 

Comegys  vs.  Vasse,  i Pet.  193,  pp.  loi,  102. 

Commercen,  The,  i Wheat.  382,  (1816),  p.  155. 

Commodore  Stewart’s  Case,  see  Stewart  vs.  U.  S. 

Commonwealth  vs.  Deacon,  10  S.  and  R.  125,  (Pa.),  p.  89. 
Commonwealth  vs.  Kosloff,  2 S.  and  R.  545,  (Pa.  1816),  p.  52. 
Commonwealth  vs.  Luckness,  14  Phila.  363,  (Pa.),  p.  54. 

Commonwealth  vs.  Manchester,  152  Mass.  230,  p.  32. 

Conception,  The,  Fed.  Cas.  3137,  (1819),  p.  19. 

Conception,  La,  6 Wheat.  235,  (1821),  pp.  118,  136. 

Conserva,  The,  38  Fed.  Rep.  431,  p.  118. 

Constantia,  The,  6 Rob.  440,  (note),  p.  157. 

Consul  of  Spain  vs.  The  Conception,  see  The  Conception. 

Cooper,  In  re,  143  U.  S.  472,  (1892),  p.  33. 

Coppell  vs.  Hall,  7 Wall.  542,  (1868),  p.  52. 

Cornelius,  The,  3 Wall.  214,  pp.  151,  152. 

Crashley  vs.  Press  Pub.  Co.,  179  N.  Y.  27,  (1904),  p.  104. 

Crenshaw,  The,  Fed.  Cas.  3384,  p.  152. 

Cross  vs.  Harrison,  16  How.  164,  p.  60. 

Cross  vs.  Talbot,  8 Mod.  288,  p.  76. 

Crossman  vs,  U.  S.,  182  U.  S.  221,  p.  60. 


243] 


LIST  OP  CASES 


243 


Darby  vs.  The  Brig  Erstern,  see  The  Erstern. 

Dashing  Wave,  The,  5 Wall.  170,  pp.  13,  152,  169,  183. 

Davis  vs.  Concordia,  9 How.  280,  p.  60. 

Davisson  vs.  Sealskins,  2 Paine  324,  p.  28. 

Dauphin  vs.  U.  S.,  6 Ct.  Cl.  221,  p.  100. 

Day  vs.  Savadge,  Hobart,  85,  p.  224. 

Debs,  In  re,  158  U.  S.  564,  (1895),  pp.  96,  122. 

DeGive  vs.  U.  S.,  7 Ct.  Cl.  517,  p.  100. 

DelassLis  vs.  U.  S.,  6 Pet.  117,  (1835),  p.  62. 

Del  Col  vs.  Arnold,  3 Dali.  333,  (1796),  pp.  133,  161,  169,  181. 

De  Lima  vs.  Bidwell,  182  U.  S.  i,  p.  60. 

Delmar  vs.  Insurance  Co.,  14  Wall.  661,  p.  63. 

Den  Onzekeron,  The  Ship,  3 Dali.  285,  pp.  135,  136. 

Dewey  vs.  U.  S.,  178  U.  S.  510,  p.  195. 

Dewing  vs.  Perdicaries,  96  U.  S.  193,  (1877),  p.  63. 

Diana,  The,  i Dods.  95,  (1813),  p.  35. 

Diana,  The,  2 Gall.  95,  p.  184. 

Diana,  The,  7 Wall.  354,  p.  152. 

Diligentia,  The,  i Dods.  404,  (1814),  p.  108. 

Dillon,  In  re.  Fed.  Cas.  710,  p.  52. 

Divina  Pastora,  The,  4 Wheat.  52,  (1819),  pp.  19,  136. 

Doe  vs.  Brandon,  16  How.  635,  p.  84. 

Dolphin,  The,  Fed.  Cas.  868,  (1863),  pp.  155,  156. 

Dooley  vs.  U.  S.,  182  U.  S.  222,  p.  60. 

Dooley  vs.  U.  S.,  >*83  U.  S.  151,  p.  60. 

Dorr  vs.  U.  S.,  195  U.  S.  138,  p.  60. 

Dos  Hermanos,  The,  2 Wheat.  76,  pp.  188,  195. 

Downes  vs.  Bidwell,  182  U.  S.  244,  pp.  60,  224. 

Dred  Scott  Case,  The,  see  Scott  vs.  Sanford. 

Durousseau  vs.  U.  S.,  6 Cranch  307,  p.  97. 

Edward  Barnard,  The,  Blatch.  122,  pp.  187,  191. 

Eldred,  In  re,  46  Wis.  530,  p.  75. 

Eleanor,  The,  7 Wheat.  345,  p.  169. 

Eliza  Ann,  The,  i Dods.  244,  (1813),  p.  108. 

Elsebe,  The,  5 Rob.  173,  (1804),  p.  193. 

Elwine  Kreplin,  The,  9 Blatch.  C.  C.  438,  p.  54. 

Ely’s  Adm.  vs.  U.  S.,  171  U.  S.  220,  (1898),  pp.  60,  62. 

Emperor  of  Austria  vs.  Day  and  Kossuth,  2 Giff.  628,  (1861),  pp.  16,  20,  73. 
Empress,  The,  Blatch.  175,  pp.  151,  152. 

Erstern,  The  Brig,  2 Dali.  34,  (Fed.  Ct.  of  App.,  1782),  pp.  158,  164. 
Estrella,  The,  4 Wheat.  298,  (1819),  pp.  34,  to8,  121,  131,  132,  136,  190,  191. 
Etrusco,  The,  3 Rob.  31,  p.  108. 

Exchange,  The  Schooner,  vs.  McFaddon,  7 Cranch  116,  (1812),  pp.  43,  45, 
50,  65,  139,  141,  148,  225. 

Experiment,  The,  2 Dali.  41,  (Fed.  Ct.  of  App.,  1787),  pp.  158,  173. 
Ezeta,  In  re,  62  Fed.  Rep.  972,  (1894),  pp.  90,  91. 


244 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[244 


Fairfax’s  Devisee  vs.  Hunter’s  Lessee,  7 Cranch  603,  (1813),  p.  215. 
Fanny,  The,  9 Wheat.  659,  (1824),  p.  136. 

Farez,  In  re,  7 Blatch.  C.  C.  345,  p.  91. 

Felicity,  The,  2 Dods.  381,  (1819),  pp.  185,  187. 

Fichera  vs.  U.  S.,  6 Ct.  Cl.  204,  p.  100. 

Fitzsimmons  vs.  Newport  Insurance  Co.,  4 Cranch  185,  (1818),  pp.  151,  152. 
Flemming  vs.  Page,  9 How.  603,  (1849),  pp.  25,  60. 

Florida,  The,  Moore’s  Digest,  2;367,  711090,  pp.  95,  145. 

Florida,  The,  loi  U.  S.  37,  (1879),  pp.  108,  134. 

Flying  Scud,  The,  6 Wall.  263,  pp.  152,  153. 

Foot  vs.  Edwards,  2 Blatch,  C.  C.  310,  p.  74. 

Forbes  vs.  Cochrane,  2 Barn,  and  Cress.  448,  (K.  B.,  1824),  p.  55. 

Ford  vs.  Surget,  97  U.  S.  594,  (1878),  pp.  34,  63. 

Fortuna,  i Dods.  81,  (1811),  p.  35. 

Foster  vs.  Neilson,  2 Pet.  253,  (1829),  pp.  19,  25,  33,  34. 

Fourteen  Diamond  Rings  vs.  U.  S.,  103  U.  S.  176,  p.  60. 

Fox,  The,  Edw.  Adm.  312,  (1811),  pp.  147,  148. 

Frances,  The  Ship,  i Gall.  445,  (1813),  pp.  159,  160. 

Frances,  The  Ship,  8 Cranch  335,  (1813),  pp.  158,  159,  160,  173,  I93- 
Frances,  The,  9 Cranch  183,  (1815),  p.  159. 

Frelinghuysen  vs.  Key,  no  U.  S.  63,  p.  102. 

Friendship,  The,  6 Rob.  320,  (1807),  p.  157. 

Galen,  The,  37  Ct.  Cl.  89,  (1901),  pp.  152,  160. 

Garcia  vs.  Lee,  12  Pet.  51 1,  pp.  19,  33. 

Gates  vs.  Goodloe,  loi  U.  S.  612,  p.  173. 

Gelston  vs.  Hoyt,  3 Wheat.  246,  (1818),  pp.  19,  118,  120,  140,  191. 

General  Armstrong  Arbitration,  The,  Moore,  Int.  Arb.,  211071,  p.  135. 
Genesee  Chief,  The,  12  How.  443,  p.  37. 

Geofroy  vs.  Riggs,  133  U.  S.  258,  pp.  82,  95. 

George,  The,  i Mason  24,  p.  184. 

Georgia,  The,  7 Wall.  32,  (1868),  p.  160. 

Georgia  vs.  Brailsford,  3 Dali,  i,  p.  215. 

Gertrude,  The,  Fed.  Cas.  5369,  5370,  p.  156. 

Geyer  vs.  Michel  and  the  Ship  Den  Onzekeron,  see  The  Den  Onzekeron. 
Gittings  vs.  Crawford,  Taney’s  Decisions,  i,  p.  52. 

Glass  vs.  The  Sloop  Betsey,  see  The  Betsey. 

Gloucester,  The  Brig,  2 Dali.  36,  (Fed.  Ct.  of  App.,  1782),  p.  194. 

Goetz  vs.  U.  S.,  182  U.  S.  221,  p.  60. 

Gonzales  vs.  Williams,  192  U.  S.  i,  p.  60. 

Goodrich  vs.  Gordon,  15  Johns  6,  (N.  Y.,  1818),  p.  186. 

Gordon  vs.  Kerr,  i Wash.  C.  C.  322,  p.  85. 

Gordon  vs.  U.  S.,  2 Wall.  561,  p.  100. 

Goshen  vs.  Stonington,  4 Conn.  Rep.  209,  p.  224. 

Gran  Para,  The,  7 Wheat.  471,  (1822),  p.  136. 

Grapeshot,  The,  9 Wall.  129,  p.  188. 

Grotius,  The,  8 Cranch  456,  (1814),  p.  162. 


245] 


LIST  OF  CASES 


245 


Guido,  The,  175  U.  S.  382,  p.  204. 

Guiteau’s  Trial,  i;i36,  p.  51. 

Hallie  Jackson,  The,  Blatch.  248,  p.  151. 

Ham  vs.  McClaws,  i Bay  98,  (S.  Car.,  1789),  p.  224. 

Hampton,  The,  5 Wall.  372,  p.  193. 

Hanauer  vs.  Woodruff,  15  Wall.  448,  p.  63. 

Handly’s  Lessee  vs.  Anthony,  5 Wheat.  374,  (1820),  pp.  24,  31. 

Harcourt  vs.  Gaillard,  12  Wheat.  523,  p,  60. 

Hart,  The,  3 Wall.  559,  pp.  155,  156,  158,  162,  164,  165. 

Hassard  vs.  United  States  of  Mexico,  173  N.  Y.  645,  61  N.  Y.  S.  939, 
pp.  43,  50. 

Hauenstein  vs.  Lynham,  100  U.  S.  483,  pp.  79,  82,  85. 

Hawaii  vs.  Mankichi,  190  U.  S.  197,  pp.  60. 

Hatch  vs.  Baez,  7 Hun  596,  (N.  Y.,  1876),  pp.  43,  44. 

Head  Money  Cases,  112  U.  S.  580,  p.  83. 

Heathfield  vs.  Chilton,  4 Burr.  2015,  (1767),  pp.  16,  51,  76. 

Hellfeld,  von,  vs.  Russian  Govt,  Am.  Jour.  Int.  Law,  51490,  p.  43. 
Henderson  vs.  Clarkson,  2 Dali.  174,  (Pa.,  1792),  p.  194. 

Hendricks  vs.  Gonzales,  67  Fed.  Rep.  351,  pp.  121,  141. 

Henfield,  In  re.  Fed.  Cas.  6360,  (1793),  pp.  no,  114,  117,  138,  225. 

Herald,  The,  3 Wall.  768,  p.  151. 

Hiawatha,  The,  Blatch.  i,  Fed.  Cas.  6451,  pp.  152,  164,  165. 

Hiawatha,  The,  2 Black  677,  pp.  151,  152. 

Hilton  vs.  Guyot,  159  U.  S.  113,  (1894),  pp.  16,  47. 

Hine,  The,  vs.  Trevor,  4 Wheat  555,  (1866),  pp.  37,  189. 

Hiram,  The,  8 Cranch  444,  p.  161. 

Hiram,  The,  i Wheat.  440,  p.  161. 

Holmes  vs.  Jennison,  14  Pet.  540,  (1840),  p.  90. 

Homer  vs.  U.  S.,  143  U.  S.  570,  p.  83. 

Hoover  vs.  U.  S.,  22  Ct.  Cl.  408,  (1887),  p.  164. 

Hope,  The,  6 Rob.  440,  (note),  p.  157. 

Horn  vs.  Lockhart,  17  Wall.  570,  p.  63. 

Hudson  vs.  Guestier,  4 Cranch  293,  (1808),  p.  186. 

Hudson  vs.  Guestier,  6 Cranch  281,  (1810),  pp.  30,  133. 

Huus  vs.  N.  Y.  and  Porto  Rico  Steamship  Co.,  182  U.  S.  392,  p.  60. 

Indiana  vs.  Kentucky,  136  U.  S.  479,  (1890),  159  U.  S.  275,  (1895),  163 
U.  S.  520,  (1897),  167  U.  S.  270,  p.  24. 

Insular  Cases,  The,  182  U.  S.  345,  pp.  60,  95. 

Invincible,  L’,  i Wheat  238,  (1816),  pp.  132,  133,  137,  190. 

Iowa  vs.  Illinois,  147  U.  S.  i,  (1893),  p.  31. 

Isaac  Williams  Case,  see  U.  S.  vs.  Williams. 

Island  Belle,  The,  Fed.  Cas.  168,  p.  160. 

Itata,  The,  1892,  Moore,  Int.  Arb.  3067,  pp.  28,  30,  133. 

Itata,  The,  56  Fed.  Rep.  505,  PP-  35,  118. 

James  G.  Swan,  The,  20  Fed.  Rep.  108,  p.  32. 

Jecker  vs.  Montgomery,  13  How.  498,  pp.  162,  169,  186,  188,  191. 


246 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[246 


Jecker  vs.  Montgomery,  i8  How.  no,  p.  162. 

Jeffries  vs.  East  Omaha  Land  Co.,  134  U.  S.  178,  (1890),  p.  24. 

Jenny,  The,  5 Wall.  183,  p.  152. 

Jeune  Nelly,  The,  ii  Wall.  47,  p.  152. 

Johnson  vs.  McIntosh,  8 Wheat.  543,  (1823),  p.  23. 

Jones  vs.  U.  S.,  137  U.  S.  202,  (1890),  pp.  20,  24,  25,  33. 

Joseph,  The,  i Gall.  545,  p.  181. 

Joseph,  The,  8 Cranch  451,  (1814),  pp.  156,  162. 

Joseph  H.  Toone,  The,  Fed.  Cas.  7541,  p.  152. 

Josephine,  The,  3 Wall.  83,  pp.  151,  152. 

Judson  vs.  Corcoran,  17  How.  612,  p.  loi. 

Julia,  The,  8 Cranch  181,  pp.  161,  164. 

Kawananako  vs.  Polyblank,  205  U.  S.  349,  (1907),  pp.  12,  43,  44. 

Keane  vs.  The  Brig  Gloucester,  see  The  Gloucester. 

Keene  vs.  McDonough,  8 Pet.  308,  pp.  19,  61. 

Kendall  vs.  U.  S.,  12  Pet.  524,  p.  175. 

Kennet  vs.  Chambers,  14  How.  38.  (1852),  p.  19. 

Kershaw  vs.  Kelsey,  100  Mass.  561,  (1868),  p.  215. 

Ketchum  vs.  Buckley,  99  U.  S.  188,  p.  23. 

Ketland  vs.  The  Cassius,  2 Dali.  365,  Fed.  Cas.  7743,  (1796),  pp.  118, 

139,  189. 

King  of  Spain  vs.  Oliver,  2 Wash.  C.  C.  429,  p.  104. 

King  of  Spain  vs.  Oliver,  Fed.  Cas.  7813,  (1810),  p.  43. 

Kirk  vs.  Lynde,  106  U.  S.  315,  p.  205. 

Knight  Commander,  The,  i Hurst  and  Bray  54. 

Lamar  vs.  Brown,  92  U.  S.  194,  p.  205. 

Langdon  Cheves,  The,  4 Wheat.  103,  p.  161. 

Lattimer  vs.  Poteet,  14  Pet.  14,  p.  95. 

Laurada,  The,  85  Fed.  Rep.  760,  (1898),  p.  118. 

Laurada,  The,  98  Fed.  Rep.  983,  p.  118. 

Leitsendorfer  vs.  Webb,  20  How.  176,  p.  61. 

Leucade,  The,  Spinks  221,  pp.  185,  187. 

Lilia,  The,  2 Sprague  177,  p.  108. 

Lindo  vs.  Rodney,  2 Doug.  614,  (1781),  p.  189. 

Little  vs.  Barreme,  2 Cranch  170,  (1804),  pp.  13,  104.  169,  183. 

Lively,  The,  i Gall.  315,  pp.  169,  184. 

Lively  and  Cargo,  The,  i Gall.  29,  p.  184. 

Lobsiger  vs.  U.  S.,  5 Ct.  Cl.  687,  p.  100. 

London  Packet,  The,  i Mason,  14,  p.  166. 

Louis,  Le,  2 Dods.  210,  (1817),  pp.  16,  30,  36,  147,  225. 

Lucy,  The,  37  Ct.  Cl.  97,  (1901),  pp.  i55,  156. 

Lynchburg,  The,  Blatch.  57,  Fed.  Cas.  8637a,  8638,  8639,  pp.  152,  166. 

McCall  vs.  Marine  Insurance  Co.,  8 Cranch  59,  p.  152. 

McCardle,  Ex  Parte,  7 Wall.  506,  p.  97. 

McCartney  vs.  Garbutt,  24  Q.  B'.  D.  36,  (1890),  p.  76.  ► 


247] 


LIST  OF  CxVSES 


247 


McDonough  vs.  Dannery  and  the  Ship  Mary  Ford,  see  The  Mary  Ford. 
Madison,  The,  Edw.  Adm.  224,  (1810),  p.  158. 

Maissonaire  vs.  Keating,  2 Gall.  324,  (1815),  pp.  183,  191. 

Major  Barbour,  The,  Fed.  Cas.  8983,  p.  152. 

Malek  Adhel,  The,  2 How.  210,  p.  35. 

Manchester  vs.  Mass.,  139  U.  S.  240,  p.  32. 

Mangrove  Prize  Money,  The,  188  U.  S.  720,  p.  195. 

Manila  Prize  Cases,  The,  188  U.  S.  254,  pp.  194,  195. 

Manning  vs.  Nicaragua,  14  How.  Prac.  517,  (N.  Y.,  1857),  p.  43. 

Marbury  vs.  Madison,  i Cranch  137,  p.  175. 

Maria,  The,  i Rob.  350,  (1899),  pp.  147,  225. 

Marianna  Flora,  The,  ii  Wheat,  i,  (1826),  pp.  35,  161,  169,  179. 

Martin  vs.  Waddell,  16  Pet.  367,  p.  23. 

Mary,  The,  9 Cranch  126,  (1815),  p.  162. 

Mary  and  Susan,  The,  i Wheat.  46,  pp.  158,  173,  181,  194. 

Mary  Ford,  The  Ship,  3 Dali.  188,  (1796),  pp.  132,  133,  170. 

Mary  N.  Hogan,  The,  18  Fed.  Rep.  529,  p.  118. 

Mayor  of  Baltimore  vs.  State,  15  Md.  376,  p.  224. 

Mersey,  The,  Fed.  Cas.  9489,  9490,  p.  152. 

Meteor,  The,  Fed.  Cas.  9498,  15,760,  (1866),  p.  118. 

Metzger,  Matter  of,  5 How.  176,  (1847),  p.  91. 

Mighell  vs.  Sultan  of  Johore,  L.  R.  i Q.  B.  D.  149,  (1894),  p.  50. 

Milligan,  Ex  Parte,  4 Wall.  2,  pp.  207,  215. 

Minerva,  The,  (1807),  Life  of  Sir  J.  Mackintosh,  i ',317,  pp.  147,  199,  225. 
Mrs.  Alexander’s  Cotton,  see  Alexander’s  Cotton,  Mrs. 

Mississippi  and  Missouri  R.  R.  vs.  Ward,  2 Black  485,  p.  74. 

Mitchell  vs.  U.  S.,  9 Pet.  71 1,  (1835),  p.  62. 

Molina  vs.  U.  S.,  6 Ct.  Cl.  571,  p.  100. 

Monte  Allegre,  The,  7 Wheat.  520,  (1822),  p.  136. 

Montoult  vs.  U.  S.,  12  How.  47,  p.  60. 

Moodie  vs.  The  Alfred,  see  The  Alfred. 

Moodie  vs.  The  Amity,  see  The  Amity. 

Moodie  vs.  The  Betty  Carthcart,  see  The  Betty  Carthcart. 

Moodie  vs.  The  Brothers,  see  The  Brothers. 

Moodie  vs.  The  Phoebe  Ann,  see  The  Phoebe  Ann. 

Moore  vs.  Steinbach,  127  U.  S.  70,  p.  60. 

Mortensen  vs.  Peters,  14  Scot.  L.  T.  R.  227,  (1906),  pp.  16,  33,  148. 
Mortimer  vs.  N.  Y.  Elevated  R.  R.  Co.,  6 N.  Y.  S.  89,  (1889),  pp.  23,  61. 
Moses  Taylor,  The,  4 Wall.  44,  (1866),  p.  37. 

Miller  vs.  The  Resolution,  see  The  Resolution. 

Mulry  vs.  Norton,  100  N.  Y.  424,  p.  24. 

Mumford  vs.  Wardwell,  6 Wall.  423,  p.  60. 

Murray  vs.  The  Charming  Betsey,  see  The  Charming  Betsey. 

Nancy,  The,  i Act.  59,  p.  15 1. 

Nancy,  The,  Fed.  Cas.  1898,  (1799),  p.  135. 

Nancy,  The,  27  Ct.  Cl.  99,  (1827),  p.  160. 


248 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[248 


Nassau,  The,  4 Wall.  634,  pp.  149,  184,  188. 

Nayade,  The,  Fed.  Cas.  7046,  p.  151. 

Neal  Dow  vs.  Johnson,  100  U.  S.  158,  (1879),  p.  141. 

Nebraska  vs.  Iowa,  143  U.  S.  359,  (1892),  p.  24. 

Neeley  vs.  Henkel,  180  U.  S.  109,  (1900),  pp.  25,  60,  91. 

Nereide,  The,  9 Cranch  388,  (1815),  pp.  148,  160,  164,  225. 

Nereyda,  The,  8 Wheat.  108,  (1823),  pp.  136,  137. 

Newfoundland,  The,  176  U.  S.  97,  (1900),  p.  152. 

New  Orleans  Co.  vs.  Rabasse,  10  So.  708,  p.  104. 

New  Orleans  vs.  U.  S.,  10  Pet.  602,  p.  60. 

New  York  Life  Insurance  Co.  vs.  Statham,  93  U.  S.  24,  (1875),  p.  215. 
Ninfa,  La,  49  Fed.  Rep.  575,  (1891),  PP.  32,  33- 
Ninfa,  La,  75  Fed.  Rep.  513,  (1896),  pp.  33,  102. 

Nuestra  Senora  de  la  Caridad,  The,  4 Wheat.  497,  p.  34. 

Nuestra  Senora  de  Regia,  The,  17  Wall.  29,  pp.  65,  152. 

Nuestra  Senora  de  Regia,  The,  108  U.  S.  92,  (1882),  pp.  149,  168,  169,  184, 

194,  195. 


Oakes  vs.  U.  S.,  174  U.  S.  778,  (1899),  p.  205. 

Ocean  City  Association  vs.  Schwer,  46  Atl.  Rep.  690,  (N.  Y.,  1900),  p.  24 
Olinde  Rodriguez,  The,  174  U.  S.  510,  p.  151. 

Ornelas  vs.  Ruiz,  161  U.  S.  502,  (1896),  p.  90. 

Orozemba,  The,  6 Rob.  430,  (1807),  p.  157. 

Packer  vs.  Bird,  137  U.  S.  661,  (1891),  p.  37. 

Pacific  Trading  Co.  vs.  U.  S.,  75  Fed.  Rep.  519,  p.  33. 

Page  vs.  Pendleton,  Wythe  Rep.  21 1,  (Va.,  1793),  p.  224. 

Palmyra,  The,  12  Wheat,  i,  pp.  135,  194. 

Panama,  The,  176  U.  S.  535,  p.  204. 

Paquete  Habana,  The,  175  U.  S.  677,  (1899),  pp.  16,  148,  204,  214,  226,  227. 
Paquete  Habana,  The,  189  U.  S.  453,  (1903),  p.  214. 

Parkinson  vs.  Potter,  L.  R.  10  Q.  B'.  152,  (1885),  p.  76. 

Parlement  Beige,  The,  L.  R.  5 P.  D.  197,  (1900),  p.  50. 

Patton  vs.  Nicholson,  3 Wheat.  204,  p.  161. 

Peabody  vs.  U.  S.,  175  U.  S.  546,  p.  24. 

Pearl,  The,  5 Wall.  574,  (1866),  pp.  155,  156. 

Pedro,  The,  175  U.  S.  354,  P-  204. 

Peggy,  The  Schooner,  i Cranch  103,  p.  194. 

Pelican,  The,  Edw.  Adm.  Appdx.  D.,  p.  20. 

People  vs.  Curtis,  50  N.  Y.  321,  (1872),  p.  90. 

People  vs.  Dennison,  84  N.  Y.  272,  p.  43. 

People  vs.  McLeod,  25  Wend.  253,  26  Wend.  663,  i Hill  375,  (N.  Y.,  1841), 
pp.  50,  77,  99,  138,  141. 

People  vs.  Warren,  ii  N.  Y.  Cr.  R.  433,  p.  79. 

Peterhoff,  The,  5 Wall.  28,  (1866),  pp.  152,  155. 

Phoebe  Ann,  The,  3 Dali.  319,  (1796),  pp.  135,  136. 

Pizarro,  The,  2 Wheat.  227,  pp.  161,  188. 


249] 


LIST  OP  CASES 


249 


Planter’s  Bank  vs.  Union  Bank,  i6  Wall.  483,  p.  215. 

Pollard  vs.  Hagan,  3 How.  212,  p.  60. 

Porter  vs.  U.  S.,  106  U.  S.  607,  p.  194. 

Prevost  vs.  Greneaux,  19  How.  i,  (1856),  p.  82. 

Prize  Cases,  The,  2 Black  635,  (1862),  pp.  19,  151,  152,  158,  173,  201. 
Purissima  Conception,  The,  6 Rob.  45,  (1805),  p.  108. 

Quincy  Rep.,  200,  474,  (Mass.,  1761-1772),  p.  224. 

Rapid,  The,  Edw.  Adm.  228,  (1810),  p.  158. 

Rapid,  The,  8 Cranch  155,  (1814),  pp.  162,  215. 

Rassmussen  vs.  U.  S.,  197  U.  S.  510,  p.  60. 

Rawles  vs.  Mason,  Rich.  Brownlow  Rep.  187,  652,  p.  224. 

Recovery,  The,  6 Rob.  348,  (1807),  pp.  16,  147,  199,  225. 

Regents  of  University  vs.  Williams,  9 Gill,  and  J.  365,  p.  224. 

Regina  vs.  Anderson,  ii  Cox  C.  C.  198,  (1868),  p.  37. 

Regina  vs.  Keyn,  L.  R.  2 Ex.  D.  63,  (1876),  pp.  16,  33,  148. 

Republic  of  Peru  vs.  Dreyfus,  38  Ch.  D.  348,  p.  20. 

Republic  of  Peru  vs.  Peruvian  Guano  Co.,  36  Ch.  D.  489,  p.  20. 
Resolution,  The,  2 Dali,  i,  (Fed.  Ct.  of  App.,  1781),  pp.  78,  170,  191. 

Res  Publica  vs.  De  Longchamps,  i Dali,  iii,  (Pa.,  1784),  pp.  16,  43,  44, 
51,  75,  98,  225. 

Revenge,  The,  2 Sprague  107,  p.  151. 

Rhode  Island  vs.  Massachusetts,  4 How.  591,  (1846),  p.  24. 

Richmond,  The  Ship,  vs.  U.  S.,  9 Cranch  102,  (1815),  pp.  28,  30. 

Ritchie  vs.  McMullen,  159  U.  S.  235,  p.  47. 

Robin  vs.  Hardaway,  Jeff.  Rep.  109,  (Va.),  p.  224. 

Rogers  vs.  Amado,  i Newb.  Adm.  400,  p.  173. 

Rose  vs.  Himely,  4 Cranch  241,  (1808),  pp.  19,  30,  132,  133,  134,  191. 

Ross,  In  re,  140  U.  S.  453,  (1891),  pp.  37,  40,  41,  60. 

Rothschild  vs.  U.  S.,  6 Ct.  Cl.  204,  p.  100. 

Rugen,  The,  i Wheat.  63,  (1816),  p.  162. 

Rutgers  vs.  Waddington,  Thayer’s  Cases,  i ;63,  (Mayor’s  Court  of  New 
York,  1784),  p.  225. 

St.  Lawrence,  The,  8 Cranch  434,  (1814),  p.  162. 

St.  Louis  vs.  Rutz,  138  U.  S.  226,  (1891),  p.  24. 

Sally,  The,  8 Cranch  382,  (1814),  p.  162. 

Sally,  The,  3 Wall.  451,  (1865),  p.  160. 

San  Jose  Indiano,  The,  2 Gall.  268,  p.  159. 

San  Jose  Indiano,  The,  i Wheat.  308,  (1814),  p.  159. 

Santa  Maria,  The,  7 Wheat.  440,  p.  136. 

Santissima  Trinidad,  The,  7 Wheat.  283,  (1827),  pp.  34,  65,  108,  118,  136. 
Scholefield  vs.  Eichelberger,  7 Pet.  586,  p.  215. 

Schwartz  vs.  Insurance  Co.  of  North  America,  3 Ward.  C.  C.  117,  p.  193. 
Scotia,  The,  14  Wall.  170,  pp.  16,  148. 

Scott  vs.  Sanford,  19  How.  393,  p.  224. 

Sea  Nymph,  The  Brig,  36  Ct.  Cl.  369,  (1901),  p.  160. 


250 


INTERNATIONAL  LAW  AND  MUNICIPxVL  LAW 


[250 


Siren,  The,  7 Wall.  152,  (1868),  pp.  43,  169. 

Siren,  The,  13  Wall.  389,  pp.  194,  195. 

Sir  William  Peel,  The,  5 Wall.  517,  pp.  108,  134. 

Slocum  vs.  Mayberry,  2 Wheat,  i,  pp.  169,  184. 

Societe,  The,  9 Cranch  209,  (1815),  p.  193. 

Society  for  the  Propagation  of  the  Gospel  vs.  New  Haven,  8 Wheat.  464, 
(1823),  p.  84. 

Springbok,  The,  5 Wall,  i,  (1866),  p.  152. 

Sprott  vs.  U.  S.,  20  Wall.  459,  (1874),  p.  63. 

Stanley  vs.  Schwalby,  162  U.  S.  255,  p.  43. 

Star,  The,  3 Wheat.  78,  (1818),  p.  170. 

State  vs.  Chue  Fan,  42  Fed.  Rep.  865,  p.  104. 

Stearnes  vs.  U.  S.,  6 Wall.  589,  p.  60. 

Stephen  Hart,  The,  Blatch.  387,  (1863),  pp.  155,  164. 

Stetson  vs.  U.  S.,  see  The  Alleganean. 

Stewart  vs.  U.  S.,  i Ct.  Cl.  113,  (1864),  pp.  108,  134,  135,  194. 

Stillman  vs.  Manufacturing  Co.,  3 Wood  and  Min.  538,  p.  74. 

Strother  vs.  Lucas,  12  Pet.  410,  p.  61. 

Susan,  The,  6 Rob.  440,  (note),  p.  157. 

Sutton  vs.  Sutton,  i Russ,  and  Mylne  663,  p.  84. 

Talbot  vs.  Jansen,  3 Dali.  133,  (1796),  pp.  iii,  122,  131,  135. 

Talbot  vs.  Seaman,  i Cranch  i,  (1801),  pp.  16,  29,  148,  170,  192,  225. 
Taylor  vs.  Barclay,  2 Sim.  213,  (1828),  p.  20. 

Taylor  vs.  Carpenter,  3 Story  458,  pp.  78,  104. 

Tellefsen  vs.  Fee,  46  N.  E.  562,  (Mass.),  p.  54. 

Teresita,  The,  5 Wall.  180,  p.  152. 

Terlinden  vs.  Ames,  184  U.  S.  270,  (1902),  pp.  89,  91. 

Terrett  vs.  Taylor,  9 Cranch  43,  p.  224. 

Texan  Star,  The,  Moore,  Int.  Arb.,  3;  2360,  p.  160. 

Thayer  vs.  Brooks,  17  Ohio  489,  p.  75. 

Thirty  Hogshead  of  Sugar  vs.  Boyle,  9 Cranch  191,  (1815),  pp.  16,  61, 
148,  155,  157,  158,  173,  226. 

Thomas  vs.  Lane,  2 Sumner  C.  C.  i,  p.  42. 

Thomas  Gibbons,  The,  8 Cranch  421,  (1814),  pp.  162,  181. 

Thompson,  The,  3 Wall.  155,  pp.  13,  152,  169,  183. 

Thorington  vs.  Smith,  8 Wall,  i,  (1868),  pp.  63,  199. 

Three  Friends,  The,  166  U.  S.  i,  (1897),  pp.  20,  35,  117,  118,  191. 

Tom,  The  Ship,  29  Ct.  Cl.  68,  (1894),  p.  149. 

Toscano,  Ex  Parte,  208  Fed.  Rep.  938,  (1913),  PP-  20,  85,  113,  122,  138,  141. 
Townsend  vs.  Greeley,  5 Wall.  326,  p.  62. 

Trent,  Case  of  the,  Moore’s  Digest,  2;  1001,  7;  626,  768,  pp.  95,  99,  145,  156. 
Trevail  vs.  Bache,  14  Pet.  95,  p.  loi. 

Triquet  vs.  Bath,  3 Burr.  1478,  (1764),  pp.  16,  51,  76,  98. 

Tropic  Wind,  The,  Fed.  Cas.  14,186,  16,541a,  p.  152. 

Tucker  vs.  Alexandroff,  183  U.  S.  424,  (1902),  pp.  50,  92. 

Turner  vs.  Williams,  194  U.  S.  279,  (1904),  p.  75. 


251] 


LIST  OF  CASES 


251 


Underhill  vs.  Hernandez,  i68  U.  S.  250,  pp.  20,  43,  50. 

U.  S.  vs.  La  Abra  Silver  Mining  Co.,  32  Ct.  Cl.  462,  (1897),  p.  102. 
U.  S.  vs.  The  Active,  see  The  Active. 

U.  S.  vs.  The  Alexander,  see  The  Alexander. 

U.  S.  vs.  The  Ambrose  Light,  see  The  Ambrose  Light. 

U.  S.  vs.  The  Amistad,  see  The  Amistad. 

U.  S.  vs.  Anguisola,  i Wall.  352,  p.  62. 

U.  S.  vs.  Arjona,  120  U.  S.  479,  (1887),  pp.  72,  96. 

U.  S.  vs.  Arredondo,  6 Pet.  691,  p.  62. 

U.  S.  vs.  D’Auterine,  10  How.  609,  p.  60. 

U.  S.  vs.  Baker,  5 Blatch.  C.  C.  ii,  p.  34. 

U.  S.  vs.  Barrows,  Fed.  Cas.  14,529,  p.  175. 

U.  S.  vs.  Bee,  4 C.  C.  A.  219,  p.  70. 

U.  S.  vs.  Benner,  Baldwin  234,  p.  51,  77. 

U.  S.  vs.  Bevans,  3 Wheat.  366,  p.  37. 

U.  S.  vs.  Chavez,  159  U.  S.  452,  (1895),  p.  61. 

U.  S.  vs.  Chavez,  175  U.  S.  509,  (1899),  p.  24. 

U.  S.  vs.  Clarke,  8 Pet.  436,  p.  62. 

U.  S.  vs.  Clarke,  16  Pet.  231,  p.  62. 

U.  S.  vs.  Coombs,  12  Pet.  72,  p.  42. 

U.  S.  vs.  Craig,  28  Fed.  Rep.  795,  p.  70. 

U.  S.  vs.  Davis,  2 Sumner  C.  C.  482,  (1837),  pp.  39,  40. 

U.  S.  vs.  Diekelman,  92  U.  S.  520,  (1875),  pp.  loi,  154,  167. 

U.  S.  vs.  Eckford,  6 Wall.  490,  p.  43. 

U.  S.  vs.  Gillies,  Pet.  C.  C.  159,  pp.  158,  173. 

U.  S.  vs.  Guillam,  ii  Wall.  47,  p.  152. 

U.  S.  vs.  Guinet,  2 Dali.  321,  (1795),  p.  118. 

U.  S.  vs.  Halleck,  154  U.  S.  537,  (1864),  p.  151. 

U.  S.  vs.  Hand,  2 Wash.  C.  C.  435,  p.  76. 

U.  S.  vs.  Hansen,  16  Pet.  196,  p.  62. 

U.  S.  vs.  Hart,  74  Fed.  Rep.  724,  78  Fed.  Rep.  868,  p.  117. 

U.  S.  vs.  Hayward,  2 Gall.  485,  p.  25. 

U.  S.  vs.  Heirs  of  Rillieux,  14  How.  189,  p.  61. 

U.  S.  vs.  Hertz,  Fed.  Cas.  15, 337,  (1855),  p.  117. 

U.  S.  vs.  Holmes,  5 Wheat.  412,  (1820),  pp.  34,  37. 

U.  S.  vs.  Hudson,  7 Cranch  32,  (1812),  pp.  no,  114,  116. 

U.  S.  vs.  Hughes,  75  Fed.  Rep.  267,  p.  117. 

U.  S.  vs.  The  Itata,  see  The  Itata. 

U.  S.  vs.  The  James  G.  Swan,  see  the  James  G.  Swan. 

U.  S.  vs.  Jeffers,  4 Cranch  C.  C.  704,  (1836),  p.  55. 

U.  S.  vs.  Ju  Toy,  198  U.  S.  253,  p.  80. 

U.  S.  vs.  Kazinski,  Fed.  Cas.  15,508,  (1855),  p.  117. 

U.  S.  vs.  Klein,  13  Wall.  128,  p.  205. 

U.  S.  vs.  Klintock,  5 Wheat.  144,  (1820),  p.  34. 

U.  S.  vs.  Liddle,  2 Wash.  C.  C.  205,  (1808),  pp.  51,  76. 

U.  S.  vs.  Lumsden,  Fed.  Cas.  15,641,  p.  117. 

U.  S.  vs.  Lynde,  ii  Wall.  632,  p.  19. 


252 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[252 


U.  S.  vs.  McGill,  4 Dali.  426,  (1806),  pp.  37,  39. 

U.  S.  vs.  McRae,  L.  R.  8 Eq.  69,  (1869),  p.  104. 

U.  S.  vs.  The  Malek  Adhel,  see  The  Malek  Adhel. 

U.  S.  vs.  The  Meteor,  see  The  Meteor. 

U.  S.  vs.  Moore,  3 Cranch  151,  p.  97. 

U.  S.  vs.  Murphy,  85  Fed.  Rep.  609,  p.  117. 

U,  S.  vs.  La  Ninfa,  see  La  Ninfa. 

U.  S.  vs.  Nunez,  82  Fed.  Rep.  599,  p.  117. 

U.  S.  vs.  O’Brien,  75  Fed.  Rep.  900,  p.  117. 

U.  S.  vs.  O’Sullivan,  Fed.  Cas.  15,974,  P-  n?- 
U.  S.  vs.  O’Keefe,  ii  Wall.  178,  pp.  100,  206. 

U.  S.  vs.  1756  Shares  of  Capital  Stock,  5 Blatch.  C.  C.  231,  pp.  205,  216. 

U.  S.  vs.  Ortega,  4 Wash.  C.  C.  531,  (1825),  p.  51. 

U.  S.  vs.  Ortega,  ii  Wheat.  467,  p.  76. 

U.  S.  vs.  Palmer,  3 Wheat.  610,  (1818),  pp.  19,  34. 

U.  S.  vs.  Percheman,  7 Pet.  51,  (1833),  p.  62. 

U.  S.  vs.  Peters,  3 Dali.  121,  (1795),  pp.  50,  139,  190. 

U.  S.  vs.  Pico,  23  How.  321,  p.  60. 

U.  S.  vs.  Pirates,  5 Wheat.  184,  p.  31. 

U.  S.  vs.  Power’s  Heirs,  ii  How.  570,  p.  61. 

U.  S.  vs.  Prioleau,  35  L.  J.  Ch.  N.  S.  7,  (1865),  p.  104. 

U.  S.  vs.  Quincy,  6 Pet.  445,  (1832),  p.  118. 

U.  S.  vs.  Quitman,  Fed.  Cas.  16,111,  (1854),  p.  121. 

U.  S.  vs.  Rauscher,  119,  U.  S.  407,  (1886),  pp.  89,  90,  91. 

LI.  S.  vs.  Ravara,  2 Dali.  297,  (1793),  Fed.  Cas.  16,122,  pp.  52,  77,  114,  116. 
U.  S.  vs.  Repentigny,  5 Wall.  212,  (1866),  p.  62. 

U.  S.  vs.  Reynes,  9 How.  127,  pp.  33,  60. 

U.  S.  vs.  Rice,  4 Wheat.  246,  (1819),  pp.  25,  63. 

U.  S.  vs.  Robbins,  Bee’s  Adm.  266,  p.  91. 

U.  S.  vs.  Rodgers,  150  U.  S.  249,  (1893),  PP-  37,  39,  42. 

U.  S.  vs.  The  Schooner  Peggy,  see  The  Peggy. 

U.  S.  vs.  Skinner,  Fed.  Cas.  16,309,  (1818),  p.  118. 

U.  S.  vs.  Smith,  Fed.  Cas.  16,342a,  (1806),  p.  118. 

U.  S..  vs.  Smith,  5 Wheat.  153,  (1820),  p.  34. 

U.  S.  vs.  Soulard,  4 Pet.  511,  (1830),  p.  62. 

U.  S.  vs.  Texas,  143  U.  S.  621,  (1892),  p.  33. 

U.  S.  vs.  Texas,  162  U.  S.  i,  (1896),  p.  31. 

U.  S.  vs.  Trumbull,  48  Fed.  Rep.  99,  (1891),  p.  118. 

U.  S.  vs.  Turner,  ii  How.  663,  p.  61. 

U.  S.  vs.  214  Boxes  of  Arms,  20  Fed.  Rep.  50,  p.  118. 

U.  S.  vs.  Vaco,  18  How.  556,  p.  60. 

U.  S.  vs.  Watts,  14  Fed.  Rep.  130,  p.  91. 

U.  S.  vs.  The  Weed,  see  The  Weed. 

U.  S.  vs.  Williams,  2 Cranch  82,  (note).  Fed.  Cas.  17,708,  (1797),  pp. 
1 16,  138. 

U.  S.  vs.  Williams,  194  U.  S.  292,  p.  80. 

U.  S.  vs.  Wiltberger,  5 Wheat.  76,  (1820),  pp.  37,  39,  42. 


253] 


LIST  OF  CASES 


253 


U.  S.  vs.  Worral,  2 Dali.  384,  (1798),  pp.  96,  no,  114,  116. 

U.  S.  vs.  Ybanez,  53  Fed.  Rep.  536,  p.  117. 

U.  S.  vs.  Yorba,  i Wall.  412,  pp.  19,  60,  62. 

Vance  vs.  U.  S.,  30  Ct.  Cl.  252,  p.  206. 

Vasse  vs.  Ball,  2 Dali.  270,  (Pa.),  p.  162. 

Vavasseur  vs.  Krupp,  L.  R.  9 Ch.  D.  351,  (1878),  p.  50. 

Venice,  The,  2 Wall.  258,  p.  63. 

Venus,  The,  8 Cranch  253,  (1814),  pp.  158,  173. 

Venus,  The  27  Ct.  Cl.  116,  (1892),  p.  161. 

Viveash  vs.  Beckers,  3 M.  and  S.  284,  (1814),  p.  52. 

Vrouw  Anna  Catharina,  The,  5 Rob.  144,  p.  108. 

Wallace  vs.  Driver,  61  Ark.  429,  p.  24. 

Ware  vs.  Hylton,  3 Dali.  199,  (1796),  pp.  85,  201,  215,  216,  225. 
Washburn,  In  matter  of,  4 John’s  Ch.  105,  (N.  Y.),  p.  89. 

Watchful,  The,  6 Wall.  91,  p.  35. 

Weed,  The,  5 Wall.  62,  p.  35. 

West  Rand  Central  Gold  Mining  Co.  vs.  Rex.,  L.  R.  2 K.  B.  301,  (1905), 
pp.  16,  48,  62. 

Whitelaw  vs.  U.  S.,  75  Fed.  Rep.  513,  p.  33. 

Whitney  vs.  Robertson,  124  U.  S.  190,  (1888),  p.  83. 

Wiborg  vs.  U.  S.,  163  U.  S.  632,  p.  117. 

Wilcox  vs.  Henry,  i Dali.  69,  (Pa.  1782),  p.  62. 

Wilcox  vs.  Luco,  18  Cal.  639,  (1898),  p.  53. 

Wildenhus’s  Case,  120  U.  S.  i,  p.  54. 

Wilkinson  vs.  The  Betsey,  see  The  Betsey. 

Wilkinson  vs.  Leland,  2 Pet.  627,  p.  224. 

William  Bagley,  The,  5 Wall.  377,  p.  173. 

William  P.  Frye,  The,  U.  S.  White  Book,  May  27,  1915,  p.  87,  (1915),  pp. 

154,  167,  185. 

Williams  vs.  Amroyd,  7 Cranch  423,  (1819),  pp.  187,  191. 

Williams  vs.  Bruffy,  96  U.  S.  176,  (1877),  pp.  63,  215. 

Williams  vs.  Suffolk  Insurance  Co.,  13  Pet.  415,  (1839),  pp.  19,  33. 

Williams  vs.  U.  S.,  23  Ct.  Cl.  46,  p.  70. 

Williams  vs.  Welhaven,  55  Fed.  Rep.  80,  p.  54. 

Wilson  vs.  Blanco,  4 N.  Y.  S.  714,  p.  51. 

Wooster  vs.  Manufacturing  Co.,  31  Me.  246,  p,  74. 

Wren,  The,  6 Wall.  155,  p.  152. 

Yeaton  vs.  Frey,  5 Cranch.  335,  (1809),  p.  151. 

Young  vs.  U.  S.,  97  U.  S.  39,  (1877),  p.  206. 

Zavalla,  The  Schooner,  Blatch.  173,  pp.  187,  191. 

Zakonite  vs.  Wolf,  226  U.  S.  212,  p.  80. 

Zee  Star,  The,  4 Rob.  71,  pp.  185,  187. 


INDEX. 


Abandoned  and  Captured  Property  act,  206. 

Abrogation  of  treaties,  83,  112. 

Abstention,  belligerent  duties  of,  toward  enemies,  198,  201  ; belligerent  du- 
ties of,  toward  neutrals,  143,  146;  duties  of,  in  time  of  peace,  23;  neu- 
tral duties  of,  106. 

Accepting  commissions,  117. 

Accretion,  acquisition  of  territory  by,  24. 

Acquiescence,  belligerent  duties  of,  toward  enemies,  198;  belligerent  du- 
ties of,  toward  neutrals,  144;  duties  of,  in  time  of  peace,  45;  neutral 
duties  of,  107. 

Acquired  territor}^  liabilities  attached  to,  56. 

Acquisition  of  territory,  23. 

Acts  of  Congress.  See  Statutes. 

Adjudication  of  prizes,  187. 

Administrative  law,  international,  88. 

Admiralty  jurisdiction,  extent  of,  37. 

Alien  enemies,  protection  of,  202,  214;  rights  of,  214.  See  also,  Enemy 
persons. 

Aliens,  protection  of,  78,  81,  97. 

Ambassadors.  See  Diplomatic  officers. 

Amelia  Island  affair,  27. 

Analogues  of  contraband,  156. 

Anarchists,  75. 

Angary,  167. 

Anti-Chinese  outrages,  96,  97. 

Anti-Italian  outrages,  80,  96. 

Apology,  reparation  by,  95. 

Arbitral  Court,  permanent,  102. 

Arbitral  decisions,  effect  of,  on  private  rights,  102. 

Arbitration,  permanent  court  of,  102;  submission  to,  a political  question, 
loi  ; treaties  of,  26. 

Armed  belligerent  vessels,  neutral  goods  on,  160. 

Army,  control  of,  175,  207,  210;  violations  of  neutrality  by,  172. 

Army  Instructions,  175. 

Army  Instructions  concerning:  rights  of  non-combatants,  21 1 ; requisition, 
212;  requisition  of  neutral  property,  168;  war,  law  of,  209. 

Army  Regulations,  68,  175. 

Army  Regulations  concerning:  neutrality,  preservation  of,  173;  respect  for 
foreign  territory,  27. 

Articles  for  government  of  the  navy,  177. 

Articles  of  War,  176. 

Assistance  of  foreign  justice,  73. 

Asylum,  right  of,  54;  for  vessels  in  distress,  65,  177. 

Austin,  John,  14,  15. 


254 


255] 


INDEX 


255 


Base  of  operations,  112,  113,  119. 

Bays,  territorial,  32. 

Behring  Sea  seal  fiisheries,  arbitration  of,  32;  litigation  over,  30,  32. 
Belligerent  duties,  toward  neutrals,  143;  toward  enemies,  198. 

Bello  parta  cedunt  reipublicae,  193. 

Bentham,  Jeremy,  on  international  law,  ii. 

Blockade,  149. 

Bonfils,  H,,  definition  of  international  law,  13. 

Boundaries,  31. 

Boundary  rivers.  See  international  rivers. 

Boxer  rebellion,  27. 

Breach  of  municipal  law,  extraterritorial  seizures  for,  29. 

Canals,  interoceanic,  124. 

Canning,  George,  on  contributions  of  the  United  States  to  the  law  of 
neutrality,  127. 

Care  of  prizes,  183. 

Caroline  affair,  27. 

Cession,  acquisition  of  territory  by,  25;  of  territory,  as  reparation,  95. 
Chesapeake  affair,  157. 

Citizens,  immunity  of,  from  foreign  military  service,  50;  jurisdiction  over, 
when  abroad,  39;  responsibility  of  government  for  acts  of,  71,  72. 

Civil  population,  acts  of  in  time  of  war,  214. 

Claims,  prosecution  of,  100;  of  neutral  owner  of  prize,  168.  See  also 
Court  of  Claims. 

Classification  of  subject  matter  of  international  law,  17. 

Closed  trade,  161. 

Combatants,  rights  of  in  land  war,  209;  rights  of  in  naval  war,  213. 
Commercial  embargoes,  123, 

Commercial  policy,  47. 

Common  law,  theory  of  territorial  jurisdiction,  45. 

Compensation  for  prizes,  168. 

Condemnation  of  prizes,  grounds  of,  149. 

Confiscation  of  enemy  debts,  201,  215;  of  enemy  private  property  on  land, 
216;  of  enemy  private  property  at  sea,  202;  of  neutral  property,  169. 
Conflict  of  laws,  46. 

Conquest,  acquisition  of  territory  by,  24. 

Consolato  del  Mare,  166. 

Constitution,  power  of  national  government  to  protect  aliens  under,  80,  81 ; 
power  of  national  government  to  perform  international  duties  under, 
99- 

Constitutional  guarantees,  effect  of,  on  extradition,  91 ; application  in  ac- 
quired territory,  59;  application  to  consular  jurisdiction,  60;  applica- 
tion to  military  government,  59;  protection  of  aliens,  79,  80. 
Constructive  enemy  character,  159. 

Consular  conventions,  40. 

Consular  jurisdiction,  37,  40,  41,  53,  60,  74. 

Consular  Regulations,  70. 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


256 


[256 


Consular  Regulations  concerning:  asylum,  55;  consuls  subject  to  jurisdic- 
tion when  abroad,  38. 

Consuls,  duties  under  international  law,  70;  immunities,  52;  subject  to 
jurisdiction  when  abroad,  39;  treaty  privileges,  49. 

Continuous  voyage,  application  to  blockade,  152;  application  to  contraband 
trade,  155;  application  to  enemy  trade,  162;  application  to  rule  of  1756, 
163. 

Contraband,  153;  judicial  decisions  on,  155. 

Contributions,  205. 

Converted  merchantmen,  181. 

Convoy,  enemy,  160;  neutral,  182. 

Cooperation,  international,  87. 

Corporations,  difficulty  of  controlling  by  law,  18. 

Court  of  claims,  100;  jurisdiction  of,  100,  206;  in  states  of  the  United 
States,  103. 

Courts  martial,  176,  177,  210. 

Counterfeit  of  foreign  securities,  73. 

Crime,  prevention  of,  88. 

Crimes  against  international  law,  72-78;  against  diplomatic  officers,  75-77; 
against  neutrality,  117,  118. 

Cuba,  succession  to,  58. 

Customs  collectors,  instructions  to,  121,  214. 

Customs  collectors,  instructions  to,  concerning:  alien  enemies,  protection 
of,  214 ; neutrality,  preservation  of,  121,  122. 

Cutting  case,  41. 

Damages  for  prize  seizures,  169. 

Declaration  of  London,  status  of  190. 

Declaration  of  London  on:  blockade,  150;  contraband,  154;  destruction  of 
prizes,  183,  184;  neutral  and  enemy  character,  158;  neutral  convoy,  182; 
requisitions,  168;  resistance  to  visit  and  search,  161 ; transfers  to  neu- 
tral flag,  159;  treatment  of  prizes,  183;  unneutral  service,  157. 

Declaration  of  Paris,  163,  165,  166,  180;  on  privateers,  180. 

De  facto  government,  succession  to,  63. 

Definitions  of  international  law,  13;  of  municipal  law,  14. 

Destruction  of  enemy  prizes,  214;  of  neutral  prizes,  184. 

Diplomatic  Instructions,  69. 

Diplomatic  Instructions  concerning : conduct  of  diplomatic  officers  in  bel- 
ligerent countries,  126;  diplomatic  officers  subject  to  jurisdiction  when 
abroad,  38,  39. 

Diplomatic  officers,  duties  in  belligerent  countries,  126;  immunities,  51; 
jurisdiction  over,  when  abroad,  38;  obligations  under  international 
law,  69;  offenses  against,  75-77;  treaty  privileges,  49. 

Diplomacy,  prosecution  of  claims  by,  100. 

Discovery  and  occupation,  acquisition  of  territory  by,  23. 

Division  of  power  between  state  and  national  governments,  228. 

Due  diligence,  72,  112. 

Duties  and  rights,  18,  19. 


INDEX 


257 


257] 

Embargo,  commercial,  123;  hostile,  216. 

Emigration,  47. 

Enemy  character  of  neutral  goods,  158. 

Enemy  goods  in  neutral  vessel,  163. 

Enemy  license,  161. 

Enemy  persons,  202,  214. 

Enemy  private  property,  on  land,  205,  216;  at  sea,  166,  202,  203. 

Enemy  ships,  enemy  goods,  165. 

Enemy  trade,  162,  215. 

Enemy  vessel  with  neutral  goods,  165. 

Enforcement  of  international  law,  ii. 

Enlisting  in  foreign  service,  117. 

Executive  Orders,  223. 

Executive  Orders  concerning:  alien  enemies,  protection  of,  214;  asylum  in 
public  vessels  and  consulates,  55;  consuls,  functions  of,  38,  55,  70;  dip- 
lomatic officers,  functions  of,  38,  69,  126;  respect  for  foreign  territory, 
27;  neutrality,  preservation  of,  122,  126;  neutrality  proclamations,  115; 
neutrality  of  Panama  Canal,  125;  requisition  of  enemy  property,  212; 
requisition  of  neutral  property,  168.  See  also,  Army  instructions; 
Army  regulations ; Consular  regulations ; Customs  officers,  instructions 
to;  Diplomatic  instructions;  Naval  instructions;  Navy  regulations. 

Executive  authority,  under  constitution,  122;  under  Hague  Conventions, 
141;  under  treaties,  85;  to  preserve  neutrality,  120,  122;  over  army, 
68,  175,  176,  210;  over  consuls,  70,  71 ; over  diplomatic  officers,  69,  126; 
over  navy,  68,  126,  177,  212,  213.  See  also.  Political  questions;  Execu- 
tive orders. 

Exemptions  from  territorial  jurisdiction,  38,  45,  49,  50. 

Exemptions  from  neutral  territorial  jurisdiction,  138-141. 

Expatriation,  48. 

Exterritoriality,  140. 

Extradition,  89-92. 

Extraterritorial  application  of  law,  42,  43. 

Extraterritorial  crime,  40, 

Extraterritorial  jurisdiction,  31,  33,  38,  40,  176-177.  See  also.  Consular  ju- 
risdiction. 

Extraterritorial  seizures,  in  time  of  peace,  29;  by  neutrals,  133. 

Fishing  vessels,  enemy,  204. 

Florida,  invasion  of,  27. 

Force,  use  of  against  foreign  states,  26. 

Foreign  governments,  offenses  against,  72,  73,  74. 

Free  ships,  free  goods,  164. 

Fundamental  norms  of  international  law,  21. 

Geneva  Conventions,  202,  209.  i 

Geneva  Convention  on  Naval  War,  212. 

Gray,  J.  C,  14,  15. 

Greytown  affair,  27. 

Guano  islands,  23. 


258  INTERNATIONAL  LAW  AND  MUNICIPAL  LAW  • [258 

Hague  Conferences,  on  abolition  of  prize  money,  196;  on  private  enemy 
property  at  sea,  167. 

Hague  Conventions  concerning:  belligerent  duties  of  abstention,  146;  con- 
verted merchantmen,  182;  declaration  of  war,  201;  hostile  embargo, 
216;  international  prize  court,  190;  intervention,  26;  naval  war,  law 
of,  212;  neutral  duties  of  abstention,  106;  neutral  duties  of  prevention, 
1 13;  neutral  duties  of  vindication,  129,  130;  neutral  property  on  land, 
173;  neutrality,  violations  of  by  navy,  177;  non-combatants,  rights  of, 
21 1 ; prohibition  of  interventions,  26;  requisition,  168,  212;  requisition 
of  prizes,  186;  reparation  for  violation  of  enemy  rights,  199;  viola- 
tions of  neutral  territory,  173;  war,  declaration  of,  201;  war,  law  of, 
202,  209,  212. 

Hague  Conventions,  judicial  application  of,  141. 

Hague  court  of  arbitration,  102. 

Hall,  W.  E.,  definition  of  international  law,  13;  on  American  contribu- 
tions to  law  of  neutrality,  127. 

Halleck,  H.  W.,  definition  of  international  law,  13. 

Hamilton,  A.,  on  relation  of  international  law  to  municipal  law,  225. 

Hawaii,  succession  to,  57. 

Hershey,  A,  S.,  definition  of  international  law,  13. 

Holland,  T.  E,,  definition  of  international  law,  13. 

Holmes,  Justice  O.  W.,  on  sovereignty,  12. 

Hovering  laws,  29,  32. 

Illegal  prizes,  restoration  of,  135,  136. 

Immigration,  47. 

Immunity  of  enemy  private  property  at  sea,  167 ; of  aliens  from  military 
service,  50,  174;  of  consuls,  52;  of  diplomatic  officers,  51.  See  also. 
Exemptions  from  jurisdiction. 

Indemnity,  reparation  by,  95,  96. 

Independence  of  states,  21. 

Indian  land  titles,  23. 

Infection,  doctrine  of,  163. 

Insurgent  government,  succession  to,  63. 

Insurgents,  as  pirates,  34;  seizure  of  vessels  of,  191. 

Insurrection,  prevention  of  by  consuls,  74. 

International  administrative  law,  88. 

International  cooperation,  87. 

International  law,  application  of,  by  courts,  227 ; constitutional  recogni- 
tion of,  225,  226;  crimes  against,  72-78;  definition  of,  12;  definitions 
of  by  leading  publicists,  13 ; executive  enforcement  of,  223 ; fundamen- 
tal norms  of,  21;  importance  of  municipal  law  enforcement  of,  229; 
incorporation  of,  into  law  of  United  States,  225;  judicial  application 
of,  227;  legislation  supplementary  to,  223;  nature  of,  ii;  objects  of, 
17,  18;  relation  of,  to  municipal  law,  12,  13,  219,  220,  225;  relation  of, 
to  natural  law,  224;  rules  of,  prescribing  conduct  for  persons  and 
officers,  219;  rules  of,  prescribing  conduct  for  sovereign  powers,  218; 
sources  of,  226;  statutory  recognition  of,  221;  subjects  of,  17,  18. 


259] 


INDEX 


259 


International  prize  court,  jurisdiction  of,  205. 

International  rivers,  31 ; right  of  free  navigation  of,  64. 

Internment  of  naval  forces  by  neutral,  138. 

Interoceanic  canals,  124. 

Intervention,  26. 

Judicial  decisions,  223. 

Jurisdiction,  admiralty,  37;  citizens  abroad,  subject  to,  39;  consular,  37,  53; 
consuls  abroad,  subject  to,  39;  diplomatic  officers  abroad,  subject  to, 
38;  exemptions  from,  50,  51;  exemptions  from  by  statute,  51;  exemp- 
tions from  by  treaty,  49;  extraterritorial,  31,  38;  merchant  vessels  on 
high  seas,  subject  to,  37;  military  forces  abroad,  subject  to,  38,  141 ; 
naval  forces  abroad,  subject  to,  38;  pirates  subject  to,  34;  belligerent 
warships  violating  neutrality,  subject  to,  137;  prize,  190,  191 ; prizes 
seized  in  violation  of  neutrality,  subject  to,  131 ; prizes  seized  by  ves- 
sels violating  neutrality,  subject  to,  135;  public  vessels,  exempt  from, 
77;  states,  foreign,  exempt  from,  43.  See  also.  Exemptions  from 
jurisdiction;  Extraterritorial  jurisdiction;  Consular  jurisdiction. 

Jurisdiction  of  courts,  statutory  definition,  222. 

Jurisdiction  of  Court  of  Claims,  100. 

Jurisdiction  of  courts  martial,  176. 

Jurisdiction  of  federal  courts,  96,  114,  116;  over  prizes,  189;  over  suits  in- 
volving international  law,  104. 

Jurisdiction  of  international  prize  court,  205. 

Jurisdiction  of  military  commissions,  176. 

Lawrence,  T.  J.,  definition  of  international  law,  13. 

Laws  of  extraterritorial  effect,  42,  43;  of  non-territorial  character,  43. 

Legislative  action,  abrogation  of  treaties  by,  83;  performance  of  treaties 
by,  85;  political  determinations  by,  223.  See  also.  Political  questions; 
Statutes ; Supplementary  Laws. 

Letters  of  Marque,  forbidden  by  treaty,  iii. 

Letters  rogatory,  73. 

Liberty  of  states,  22. 

Lieber,  Francis,  Instructions  for  the  government  of  the  armies  in  the  field, 
168,  209.  See  also.  Army  instructions. 

Local  responsibility  for  outrages,  103. 

Maine,  Sir  Henry  S.,  15,  226,  229. 

Marauding  Indians,  suppression  of,  28. 

Marshall,  Chief  Justice  John,  on  law  applied  by  courts,  225;  on  prize 
courts,  148. 

Martial  law,  207. 

Merchant  vessels,  jurisdiction  over,  37. 

Military  commissions,  176,  210. 

Military  expeditions,  117. 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


260 


[260 


Military  forces,  exemptions  from  jurisdiction,  50;  subject  to  jurisdiction 
when  abroad,  38.  See  also,  Army. 

Military  government,  208;  application  of  constitutional  guarantees  to,  68; 
succession  to,  63. 

Military  law,  175,  208. 

Ministers,  public.  See  Diplomatic  officers. 

Monroe  doctrine,  88. 

Municipal  law,  definition  of,  15;  nature  of,  il. 

National  government,  power  to  enforce  international  obligations,  228; 
reparation  by,  94. 

Natural  law,  223,  224. 

Natural  rights,  guaranteed  to  inhabitants  of  acquired  territory,  60. 

Naturalization,  47. 

Naval  forces,  control  of,  212,  213,  214;  illegal  acts  by,  137;  neutral  juris- 
diction over  belligerent,  137;  obligations  under  international  law, 
68;  subject  to  jurisdiction  when  abroad,  38;  violations  of  neutrality 

by,  177. 

Naval  Instructions,  178. 

Naval  Instructions  concerning:  adjudication  of  prizes,  188;  blockade,  150; 
combatants,  rights  of,  212,  213;  contraband,  154;  destruction  of  prizes, 
185;  exemption  of  enemy  vessels  from  capture,  204;  free  ships,  free 
goods,  164,  165 ; hospital  ships,  212 ; hostile  embargo,  216 ; non-combat- 
ants, rights  of,  213;  privateers,  180;  requisition  of  neutral  property, 
168;  resistance  to  visit  and  search,  161 ; restoration  of  prizes,  170; 
treatment  of  prizes,  184;  visit  and  search,  183. 

Naval  officers,  duty  to  preserve  neutrality,  126;  exemption  from  neutral 
jurisdiction,  138. 

Navy,  articles  for  government  of,  177;  control  of,  177. 

Navy  Regulations,  68,  126,  178,  213. 

Navy  Regulations  concerning:  asylum  in  naval  vessels,  55;  naval  forces 
subject  to  jurisdiction  when  abroad,  38;  neutrality,  preservation  of, 
126;  respect  for  foreign  territory,  27. 

Necessity,  grounds  for  prize  condemnation,  167. 

Neutral,  belligerent  duties  toward,  143. 

Neutral  duties  toward  belligerent,  106. 

Neutral  and  enemy,  character  of  property,  173. 

Neutral  flag,  transfers  to,  159. 

Neutral  goods  in  armed  enemy  vessel,  160;  in  enemy  vessel,  165, 

Neutral  prize  jurisdiction,  132. 

Neutral  property  at  sea,  149. 

Neutral  trade,  freedom  of,  162. 

Neutral  vessel  with  enemy  goods,  163. 

Neutrality,  contributions  of  United  States  to  law  of,  127;  obligations  of, 
administrative  enforcement,  120,  122;  obligations  of,  judicial  enforce- 
ment, 1 17-120;  offenses  against,  1 17-120;  violations  of,  by  army,  173; 
violations  of,  forbidden  by  treaty,  no,  114;  violations  of,  means  of 
preventing,  127. 


261] 


INDEX 


261 


Neutrality  proclamations,  115. 

Neutrality  statutes,  history  of,  114-116. 

Non-combatants,  rights  of,  in  land  war,  210;  rights  of,  in  naval  war,  213. 

Objects  of  international  law,  17,  18. 

Obligations  of  states,  22;  to  enforce  international  law,  16. 

Offenses  against  diplomatic  officers,  75-77;  against  international  law,  72- 
78;  against  neutrality,  1 17-120. 

Ordinances,  See  Executive  orders. 

Panama  Canal,  124 ; neutrality  of,  125. 

Paper  blockade,  153,  163. 

Passports,  carriage  of,  161 ; issue  of  false,  73. 

Peace  and  amity  treaties,  no. 

Philippines,  succession  to,  58. 

Phillimore,  Sir  Robt,  on  prize  courts,  148. 

Piracy,  34-35;  privateering  designated  as,  in  treaties,  in;  seizure  of  ves- 
sels for,  191. 

Political  questions,  17,  19,  25,  106,  143,  201,  218;  abrogation  of  treaties  as, 
84;  commencement  of  wars  as,  201;  extent  of  maritime  jurisdiction 
as,  33;  interventions  as,  27;  reparations  as,  94;  reprisals  as,  29;  sub- 
mision  to  arbitration  as,  loi. 

Porto  Rico,  succession  to,  50. 

Preemption,  167. 

Prescription,  acquisition  of  territory  by,  24. 

Presumption  of  enemy  character,  158, 

Prevention,  belligerent  duties  of,  toward  enemies,  199,  207 ; belligerent 
duties  of,  toward  neutral,  144,  172;  duties  of  in  time  of  peace,  67; 
neutral  duties  of,  107,  no. 

Prisoners  of  war,  treatment  of,  209. 

Private  international  law,  46. 

Private  law,  effect  of  succession  on,  61. 

Private  rights,  effect  of  succession  on,  52;  effect  of  war  on,  215. 

Privateering,  treaty  provisions,  in. 

Privateers,  137,  180. 

Prize  bounty,  193. 

Prize  courts,  147 ; distribution  of  prize  proceeds  by,  193 ; enemy  rights  in, 
203;  establishment  of,  188;  functions  of  192;  history  of,  in  United 
States,  188,  189;  location  of,  188. 

Prize  court,  international,  190;  jurisdiction  of,  205. 

Prize  jurisdiction,  189;  belligerent,  190;  neutral,  134. 

Prize  law,  general  principles  of,  171. 

Prize  money,  193;  abolition  of,  195,  196. 

Prizes,  adjudication  of,  187;  claim  of  neutral  owner  to,  168;  condemnation, 
grounds  of,  149;  destruction  of  enemy,  214;  destruction  of  neutral, 
185;  enemy,  202;  exemptions  from  capture  of  enemy,  203,  204;  illegal, 
131 ; neutral,  149;  ransom  of,  185;  recaptured,  restoration  of,  169;  re- 


262 


INTERNATIONAL  LAW  AND  MUNICIPAL  LxVW 


[262 


lease  of,  187;  restoration  of  illegal,  by  neutral,  135,  136;  restoration 
of  recaptured,  169;  sequestration  of,  129,  170,  186;  treatment  of 
enemy,  213,  214;  treatment  of  neutral,  183;  vesting  of  title  in,  149. 
See  also.  Blockade;  Contraband;  Unneutral  service;  Presumption  of 
emeny  character;  Necessity. 

Proclamation  of  blockade,  150;  of  neutrality,  115;  to  privateers,  180. 

Property  on  land,  enemy,  205;  neutral,  174. 

Property  at  sea,  enemy,  212;  neutral,  149. 

Property  in  transitu,  159. 

Public  law,  effect  of  succession  on,  60. 

Public  ministers.  See  Diplomatic  officers. 

Public  officers,  responsibility  of,  104. 

Public  vessels,  belligerent,  neutral  jurisdiction  over,  159;  foreign,  exemp- 
tion from  local  jurisdiction,  49,  50,  139;  foreign,  exemption  from  serv- 
ice of  legal  process,  55;  national,  subject  to  jurisdiction  when 
abroad,  37. 

Publicists,  frequently  cited  by  courts,  226. 

Punishment  of  offenders  as  reparation,  97. 

Ransom,  185. 

Recaptured  prizes,  restoration  of,  169. 

Recognition,  19. 

Relation  of  international  to  municipal  law,  12,  13,  218-220,  225-226. 

Relation  of  international  law  to  natural  law,  224. 

Release  of  neutral  prizes,  187. 

Release  of  persons  held  in  custody,  as  reparation,  99. 

Reparation,  94,  95,  97,  99;  belligerent  duties  of  toward  enemy,  199;  bellig- 
erent duties  of  toward  neutrals,  145;  duties  of,  in  time  of  peace,  93; 
neutral  duties  of,  108. 

Reparation  from  states  of  the  United  States,  102,  103 ; from  public  offi- 
cers, 104;  from  private  persons,  104. 

Reprisals,  28. 

Requisition,  205,  212. 

Responsibility  of  government  for  acts  of  citizens,  72;  for  injury  of  neu- 
trals in  war,  174;  for  violations  of  international  law,  12,  93. 

Restitution  of  prizes,  168. 

Restoration,  neutral  duty  of,  107 ; of  illegal  prizes,  by  neutral,  107,  135, 
136;  of  recaptured  prizes,  169;  of  vessels  recaptured  from  pirates,  35. 

Retaliation,  199,  207. 

Rights  and  duties,  18,  19. 

River  boundaries,  31. 

Rivers,  diversion  of,  74. 

Rivers,  international,  31. 

Rogatory,  letters,  73. 

Roman  law,  theory  of  territorial  jurisdiction,  45. 

Rousseau,  J.  J.,  on  nature  of  war,  209. 

Rule  of  1756,  161,  162,  163. 


263] 


INDEX 


263 


Salmond,  J.  W.,  definition  of  municipal  law,  15. 

Salvage,  military,  193,  195. 

Sanctions  of  international  law,  14. 

Scott,  J,  B.,  on  relation  of  international  to  municipal  law,  218. 

Scott,  Sir  William,  see  Lord  Stowell. 

Seal  fisheries  controversy,  30,  32. 

Seamen,  return  of  deserting,  92. 

Seizure,  of  neutral  property  at  sea,  178;  of  prizes,  191 ; of  enemy  prop- 
erty on  land,  205,  206, 

Seizures,  beyond  territorial  jurisdiction,  29;  by  privateers,  181 ; without 
probable  cause,  183. 

Self  defense,  as  justification  for  intervention,  27. 

Sequestration  of  prizes,  129,  130,  186. 

Servitudes,  64. 

Slaves,  asylum  in  public  vessels,  55 ; fugitive,  British  Royal  Commission: 
report  on,  55,  56. 

Slave  Trade,  35;  seizure  of  vessels  for,  141. 

Sovereigns,  exemption  from  jurisdiction  of,  43,  50;  right  of  legal 
recourse  by,  144. 

Sovereignty,  ii,  21. 

States,  foreign,  right  of  legal  recourse  by,  104. 

States  of  the  United  States,  liability  to  suit  of,  193. 

Statutes,  221 ; abrogation  of  treaties  by,  83 ; express  recognition  of  inter- 
national law  in,  221;  principles  of  international  law  embodied  in,  222; 
supplementary  to  international  law,  223. 

Stephen,  Sir  James  Fitzjames,  14,  219. 

Stockton,  Admiral  C.  H.,  Naval  War  Code,  168,  212,  See  also  Naval 
Instructions. 

Story,  Justice  Joseph,  on  neutral  goods  in  enemy  vessels,  160. 

Stowell,  Lord,  on  prize  courts,  147 ; on  relation  of  international  to 
municipal  law,  225. 

Subjects  of  international  law,  17,  18. 

Succession,  56;  effect  of,  on  private  law,  61;  effect  of,  on  private  rights, 
59,  62;  effect  of,  on  public  law,  60;  effect  of,  on  public  obligations,  57; 
effect  of,  on  treaties,  57. 

Supplementary  laws  to  international  law,  223. 

Suppression  of  marauders,  72. 

Territorial  bays,  32. 

Territorial  sovereignty,  21. 

Territorial  waters,  prize  seizures  in,  134. 

Territory,  extent  of,  31;  violations  of,  141. 

Texan  debt,  case  of  the,  57. 

Texas,  succession  to,  57. 

Three  mile  limit,  31. 

Trade  with  the  enemy,  162,  215. 

Transfer  to  neutral  flag,  159.  , [ 

Transit,  title  to  property  in,  159;  transfers  in,  159, 


264 


INTERNATIONAL  LAW  AND  MUNICIPAL  LAW 


[264 


Treaties,  8i,  220;  abrogated,  vested  rights  under,  83;  abrogation  of,  83; 
as  law  of  the  land,  82,  83;  constitutional  recognition,  82;  effect  of 
succession  on,  57;  effect  of  war  on,  84;  executive  power  to  enforce, 
85;  infraction  of,  81;  judicial  application  of,  82;  legislation  supple- 
mentary to,  85 ; nature  of,  81 ; relation  of,  to  international  law,  86. 

Treaty,  acquisition  of  territory  by,  25. 

Treaty  power  of  United  States,  cession  of  territory  by,  95;  extent  of,  82. 

Treaty  of  Washington,  112. 

Treatment  of  prizes,  183. 

Trent  affair,  157. 

Unneutral  service,  156. 

Upton,  F.  H.,  on  blockade,  151. 

r 

Vera  Cruz,  landing  of  troops  at,  27. 

Vindication,  belligerent  rights  of,  against  enemies,  199;  belligerent  rights 
of,  against  neutrals,  144;  duties  of,  in  time  of  peace,  87;  neutral  duties 
of,  108,  129, 

Violations  of  territorial  waters,  131,  134;  of  territory,  141. 

Visit  and  search,  formalities  of,  182;  resistance  to,  161. 

Visit  and  search  of  slave  traders,  35. 

Walker,  T.  A.,  13,  15. 

War,  articles  of,  176;  commencement  of,  201;  effect  of,  on  contracts,  215; 
effect  of,  on  treaties,  84;  law  of,  204;  nature  of,  209. 

Washington,  treaty  of,  112. 

Westlake,  John,  definition  of  international  law,  13. 

Willoughby,  W.  W.,  on  relation  of  international  to  municipal  law,  220,  225. 


